OCTOBER 1987
COMMISSION DECISIONS
There were no Commission decisions during October
ADMINISTRATIVE LAW JUDGE DECISIONS
10-05-87
10-05-87
10-05-87
10-07-87
10-08-87
10-08-87
10-15-87
10-15-87
10-20-87
10-20-87
10-20-87
10-22-87
10-23-87
10-23-87
10-27-87
10-28-87
10-29-87
10-30-87
10-30-87

Green River Coal Company, Inc.
John A. Harris v. Benjamin Coal Co.
Paramont Coal Corporation
Charles McGhee & Jackie Lowe v.
American Standard Coal Sales, etc.
Local 1248, Dist. 5, UMWA v. U.S. Steel Mining
Highwire, Incorporated
Mid-Continent Resources, Inc.
U.S. Steel Mining Company, Inc.
Green River Coal Company, Inc.
Ronald R. Morris v. Dunkard Mining Co.
Sec. Labor for David Willis & Albert Halstead
v. Babcock Mining Co., and others
Local 1261, Dist. 22, UMWA v. Consolidation
Coal Company
J.C. London Coal Company, Inc.
Highwire, Incorporated
Green River Coal Company, Inc.
Arnold Sharp v. Big Elk Creek Coal Co.
Alfred Daniels v. Southwestern Portland Cement
Thomas W. Godfrey v. Big Elk Creek Coal Co.
Pioneer Sand & Gravel Company

KENT 87-99-R
PENN 87-72-D
VA
86-46
SE
86-98-D
SE
86-99-D
PENN 87-187-C
KENT 86-166-R
WEST 85-19
PENN 87-37
KENT 86-142
PENN 87-77-D
WEVA 87-106-D
WEVA 87-107-D
WEST 86-199-C
KENT 86-126
KENT 87-95
KENT 87-13-R
KENT 86-149-D
LAKE 87-46-DM
KENT 87-92-D
WEST 87-28-M

Pg.
Pg.
Pg.
Pg.

1715
1718
1720
1753

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

1754
1755
1757
1771
1780
1791
1797

Pg. 1799
Pg. 1803
Pg. 1812
Pg. 1815
Pg. 1822
Pg. 1823
Pg. 1838
Pg. 1839

OCTOBER 1987

Review was granted in the following cases during the month of October:
Paula Price v. Monterey Coal Company, Docket No. LAKE 86-45-D. (Judge
Melick, September 3; 1987).
Local Union 1810, District 6, UMWA v. NACCO Mining Company, Docket No.
LAKE 87-19-C. (Judge Fauver, September 18, 1987).
Secretary of Labor, MSHA v. Freeman United Coal Mining Co., Docket No.
LAKE 86-67. (Judge Morris, September 21, 1987)

There was no case filed in which review was denied.

ADMINISTRATIVE LAW JUDGE DECISION§

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

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

October 5, 1987
GREEN RIVER COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 87-99-R
Citation No. 9897101; 2/27/87

v.

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

Docket No. KENT 87-100-R
Citation No, 9897102; 2/27/87
Docket No. KENT 87-101-R
Citation No. 9897103; 2/27/87
Docket No. KENT 87-102-R
Citation No, 9897104; 2/27/87
Docket No. KENT 87-103-R
Citation No. 9897105; 2/27/S7
Docket No. KENT 87-104-R
Citation No. 9897106; 2/27/87
Docket No. KENT 87-105-R
Citation No. 9897107; 2/27/87
Docket No. KENT 87-106-R
Citation No. 9897108; 2/27/87
Docket No, KENT 87-107-R
Citation No. 9897109; 2/27/87
Docket No. KENT 87-108-R
Citation No. 9897110; 2/27/87
Docket No. KENT 87-109-R
citation No. 9897111; 2/27/87
Docket No. KENT 87-110-R
Citation No. 9897112; 2/27/87
Docket No. KENT 87-111-R
Citation No. 9897113; 2/27/87
Docket No. KENT 87-112-R
Citation No. 9897114; 2/27/87
Docket No. KENT 87-113-R
Citation No, 9897115; 2/27/87
Docket No. KENT 87-11.4-R
citation No. 9897116; 2/27/87
Docket No. KENT 87-115-R
Citation No. 9897117; 2/27/87
Docket No. KENT 87-116-R
Citation No. 9897118; 2/27/87
Docket No, KENT 87-117-R
citation No. 9897119; 2/27/87
Docket No. KENT 87-118-R
Citation No. 9897120; 2/27/87
Docket No. KENT 87-119-R
Citation No. 9897121; 2/27/87
Docket No. KENT 87-120-R
Citation No. 9897122; 2/27/87
Docket No. KENT 87-121-R
Citation No. 9897123; 2/27/87
Docket No. KENT 87-122-R
Citation No. 98971241 2/27/87
Docket No. KENT 87-123-R
Citation No. 98971251 2/27/87

1715

Docket No. KENT 87-124-R
Citation No. 98971261 2/27/87
Docket No. KENT 87-125-R
Citation No. 98971271 2/27/87
Docket No. KENT 87-126-R
Citation No. 9897128; 2/27/87
Docket No. KENT 87-127-R
citation No. 9897129; 2/27/87
Docket No. KENT 87-128-R
Citation No. 9897130; 2/27/87
. Docket No. KENT 87-129-R
Citation No. 98971311 2/27/87
Docket No. KENT 87-130-R
Citation No. 9897132; 2/27/87
Docket No. KENT 87-131-R
Citation No. 9897133; 2/27/87
Docket No. KENT 87-132-R
Citation No. 9897134; 2/27/87
Docket No. KENT 87-133-R
Citation No. 9897135; 2/27/87
Docket No. KENT 87-134-R
Citation No. 9897136; 2/27/87
Docket No. KENT 87-135-R
Citation No. 98971371 2/27/87
Docket No. KENT 87-136-R
Citation No. 9897138; 2/27/87
Docket No. KENT 87-137-R
Citation No. 9897139: 2/27/87

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 87-172
A. C. No. 15-13469-03602

v.

Docket No. KEN·r 87-173
A. C, No. 15-13469-03603

GREEN RIVER COAL COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
AND ORDER OF DISMISSAL
Before:

Judge Weisberger

These cases are before me based on Notices of Contest filed
The Secretary subsequently filed proposals for
assessments of the Civil Penalties.
by the Petitionero

Both Parties filed a Joint Motion to Approve Settlement on
September 23, 1987. The Motion proposed a reduction in total
Penalties from $7,800 to $950. I have considered the documentation submitted in these cases, especially the representations of
mitigating factors contained in paragraph 4. of the Motion and
paragraphs 5. and 7. of Dave Harper's affidavit. I conclude that
the proffered penalties agreed upon are appropriate under the
criteria set forth in Section llOCi) of the Act.

1716

The Joint Motion also set forth a settlement agreement that
20 of the contested citations be vacated on the ground that they
are not violations of the reporting requirements (30 C.F.R.
§ 50.20), as they do not meet the definition of a reportable
"accident", or "occupational injury". I have considered the
documentation in these cases, especially paragraphs 3. and 5. of
the Joint Motion, paragraph 6. of Dave Harper's affidavit, and
Exhibit "A" attached to Dave Harper's affidavit.
I conclude that
it is proper to vacate the 20 citations· referred to in the Motion.
Wherefore, the Joint Motion to Approve Settlement is GRANTED,
and it is ORDERED that Petitioner {Operator) pay a penalty of
$950, within 30 days of this Order. It is further ORDERED that
the following citations be VACATED:
9897101
9897104
9897112
9897114
9897115
9897117
9897119
9897120
9897122
9897125

9897128
9897129
9897130
9897131
9897133
9897134
9897135
9897137
9897138
9897139

It is further ORDERED that the above captioned Notices of
Contest be DISMISSED.

Avram Weisberger
Administrative Law Judge
Distribution:
Mary Sue Rayf Esq.u Office of the Solicitorf Uo S. Department of
Laboru 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Mr. Flem Gordon, Green River Coal Company, Inc., R.R. #3,
Box 284A, Madisonville, KY 42431 (Certified Mail}
dcp

1717

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

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

OCT 5 \987
JOHN A. HARRIS,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. PENN 87-72-D
MSHA Case No. PITT CD 86-20

BENJAMIN COAL COMPANY,
Respondent

Benjamin No. 1 Strip Mine

ORDER DISMISSING COMPLAINT
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a pro se discrimination complaint
filed by the complainant John A. Harris against the respondent
pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977. The pleadings and other information of
record reflects that Mr. Harris was employed by the respondent
as a blaster, and that as a result of a shot which he detonated
a mine foreman was killed by fly rock from the blast. As a
further result of this incident, Mr. Harris' state blaster's
license was suspended, and he was subsequently discharged by the
respondent on August 12, 1986, for violation of company safety
practices and for "a pattern of disregard" for company safety
procedures and practices.
Complainant filed his initial complaint with the Secretary
of Labor, ~ine Safety and Health Administration (MSHA), and
after complet~on of its investigation, MSHA advised the complainant that its investigation of his complaint disclosed no
discrimination against him by the respondent.
The basis for the
subsequent pro se complaint filed with the Commission is the
assertion by thecomplainant that his termination "was very
unfair," and he requested reinstatement, back pay, and a
"clearing of my name by Benjamin Coal Company."
After review of the complaint and the information submitted
by the complainant with respect to the circumstances surrounding

his discharge, I conclude that there was nothing to suggest that

1718

his discharge was the result of any rights or protections
afforded him under section lOS(c) of the Act.
In short, I
concluded that based on the information submitted by the complainant in support of his complaint, there was no claim or
cause of action for which relief could be granted under
section lOS(c) of the Act. Under the circumstances, I issued
an Order to Show Cause on July 13, 1987, directing the complainant to state why his complaint should not be dismissed
for failure to state a viable claim under section .ios(c) of
the Act.
The complainant has not responded to my Order to Show
Cause. The postal service certified mail receipt reflects
that he received the Order on August 5, 1987. Under the circumstances, I conclude that this complaint should be dismissed
for failure to state a cause of action or claim and for the
failure by the complainant to respond to my Order of July 13,
1987.
ORDER
In view of the foregoing, this complaint IS DISMISSED.

~~~£~
~f~ .
Admi

Koutras
strative Law Judge

Distribution:
Mr" John A. Harrisr RD 1, Box 118, Irvona, PA 16656
(Certified Mail)
Mr. John B. Martyak, Manager Personnel/Safety, Benjamin Coal
Company, Benjamin #1 Strip, RD, LaJose, PA 15753
(Certified Mail)

/fb

1719

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

OCT 5 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 86-46
A.C. No. 44-06112-03507

v.
Deep Mine No. 13
PARAMONT COAL CORPORATION,
Respondent,
DECISION
Appearances:

Page H. Jackson, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner1
Karl K. Kindig, Esq., The Pittston Company,
Abingdon, Virginia, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of
civil penalty 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 $850 for a violation of mandatory safety standard 30 C.F.R. § 75.202, as stated in a
section 104(d){l) Citation No. 2752968, issued on February 14,
1986f at the respondent's mine. The respondent filed a timely
answer contesting the citation and a hearing was held in
Duffieldv Virginia. The parties filed posthearing briefs, and
the arguments presented therein have been considered by me in
the course of my adjudication of this case.
I have also considered the oral arguments made by counsel during the course
of the hearing.
Issues
The parties have stipulated as to the fact of violation,
and they agree that a violation of section 75.202 occurred as
stated by the inspector in the citation. The parties agree

1720

that the only issue presented in this case is whether or not
the proposed civil penalty assessment based on the inspector's
finding of "high ne~ligence" was correct (Tr. 5). The parties
also agreed that the validity of the section 104(d)(l) citation insofar as it alleges an "unwarrantable failure 11 by the
respondent is not an issue in this civil penalty proceeding
(Tr. 5) •
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 ~·

u.s.c. § 820(i).

2.

Section llO(i) of the 1977 Act, 30

3.

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

Stipulations
The parties stipulated to the following (Tr. 8-9):
1. The respondent is the owner and operator of the Deep No. 13 Mine, and is subject
to the jurisdiction of the Act.
2. The presiding judge has jurisdiction
to hear and decide this matter.
3. The inspector who issued the citation
in question was acting in his capacity as an
authorized representative of the Secretary of
Labor"
4. The citation in question was duly
served on the respondent, and all witnesses
testifying in the hearing are accepted
generally as experts in coal mine health and
etyo .

5. The imposition of a civil penalty for
the violation in question will not adversely
feet the respondent's ability to continue in
business.

6. The respondent is a wholly owned
subsidiary of Pyxis Resources Company, a
subsidiary of the Pittston Coal Corporation.
In 1985, the respondent was a wholly owned

1721

subsidiary of a partnership controlled by the
Hanna Mining Company and w. I. Grace Company.
7. In 1986, the respondent produced
approximately 400,000 tons of coal, and it is
a medium-size coal company.
8. A violation of mandatory safety
standard 30 C.F.R. § 75.202, did.in fact occur
as stated and alleged in the citation which
was issued in this case.
9. MSHA's computer print-out concerning
the respondent's assessed history of prior
violations as reflected in exhibit G-1 may be
used in determining an appropriate civil
penalty assessment.
10. The violation was abated by the
respondent within the time fixed by the
inspector.
Section 104(dJ(l) "S&S" Citation No. 2752968, issued on
February 14, 1986, cites a violation of mandatory safety
standard 30 C.F.R. § 75.202, and the cited conditions or
practices are described as follows:
Loose overhanging coal and rock brows and
fractured coal ribs were present in the Nos. 2,
3, 4, and 5 entries on the 001 No. 1 active
working section beginning at the section belt
feeder and extending inby for approximately
200 feet including the interconnecting crosscuts left and righto The loose overhanging
brows and fractured ribs were located in
regularly traveled haulways and were readily
visible. The mining height is from 9 to
10 feet •. The brows were from 3 feet to 8 feet
long from 2 feet to 4 fto thick and overhanging
from 10 inches to 3 feet. Also, the belt entry
from the 3rd interconnecting crosscut outby the
Noo 2 drive inby to the belt tailpiece.
The inspector fixed the abatement time as 8:00 a.m.,
February 18, 1986, and on that day another inspector extended
the abatement time to February 29, 1986, because "a roof fall
at the mine has stopped all work. Additional time is
granted." Thereafter, on March 3, 1986, a third inspector

1722

extended the abatement time to March 10, 1986, for the
following reason:
The operator is in the process of permanently abandoning the mine. However, some of
the ribs have been taken down and as the mine
is being pulled out the rest of the areas
involved will be timbered or taken down. More
time is granted to complete the work being
done to correct this citation.
The citation was terminated on March 7, 1986, and the
termination notice states that "The overhanging coal and rock
brows and fractured coal ribs referred to in Citation
No. 2752968 were either taken down or supported."
Petitioner's Testimony an~ Evidence
MSHA Inspector Larry Coeburn confirmed that he issued
the citation during the course of a spot inspection conducted
on February 14, 1986, with his supervisor Ewing C. Rines.
The inspection was in conjunction with a fatal roof fall accident investigation which began that same morning (Tr. 17).
Mr. Coeburn stated that he observed overhanging brows in at
least 10 locations, and loose ribs at approximately four locations, and that he recorded these in his notes, and later
reproduced them on a sketch or map of the area which he prepared for the hearing (exhibit G-3~ Tr. 20-22). He measured
the brows by means a carpenter's rule and recorded the
results on the sketch, and confirmed that none of them were
supported (Tr. 24). Some of the brows were pulled down with
very little effortv but he did not record these in his notes
or on the sketch. He was not aware of any brows where
attempts were made to pull them down, and they did not come
down.
With regard to the loose and fractured ribs located on
the sketchu Mr. Coeburn stated that he observed visible vertical fractures and separations of coal away from the main coal
pillar, and that some of the ribs had been rock dusted at
places where the pressure on the pillar "had caused it to
sort of break outward, ravel, slough" (Tr. 26).
Mr. Coeburn identified exhibits G-4 through G-8 as
sketches of the areas where he found he cited rib and brow
conditions, and he explained the conditions and locations as
depicted on the sketches (Tr. 26-36). He stated that miners
would be working in these areas at different times, and he
observed signs of travel by shuttle cars and scoops in the

1723

haulageways and entries <Tr. 39, 42). He confirmed that he
observed four loose, overhanging coal and rock brows on the
walkway clearance side of the belt haulageway outby the areas
depicted on the sketch, exhibit G-3, and confirmed that men
would normally walk along that walkway. However, he observed
no loose ribs in this walkway area (Tr. 45).
Mr. Coeburn confirmed that five people would normally be
working in the areas where he observea the loose brows and
fractured ribs, and they would be building stoppiµgs and
working on the belt. Also, at any given time, one person
would be present on a piece of equipment along the travelways
(Tr. 42-43}. Mr. Coeburn believed that it was highly likely
that a roof fall would occur, and that due to the mining
height and the size of the overhanging brows and the extent
of the fractured ribs, if falls occurred, fatal injuries
would result. Under all of these circumstances, he concluded
that the cited conditions· constituted a significant and
substantial violation (Tr. 47-48}.
Mr. Coeburn stated that the coal brows were "man-made"
and were created during the mining and removal of coal. They
were left by the continuous-mining machine that had mined the
entries up to the roof line. On the ribs and corners, the
exposed brows were left where the machine had not mined all
the way up the entry. The machine bit markings were evident
on the brows (Tr. 43-44).
In response to a question as to why he made a finding of
high negligence" on part II of the citation form, Mr. Coeburn
responded as follows:
11

QQ Now, you checked -- under negligence, Part
II, you checked high. Why do you believe the
respondent, Paramont Coal Corporation, demonstrated high negligence in allowing this condition to exist?
A. The brows were man-made, made with the
continuous mining machine as mining progressed.
The conditions -- the overhanging brows and
loose ribs were very obvious to anyone who
entered that area. They were very obvious •
. This mining was -- coal was being mined
on the section at this time or immediately
prior to this and had been -- these conditions
had existed -- in my opinion, the brows had
existed for some time prior to this taking

1724

about the situation" (Tr. 69). He stated that the ribs on
the top side of the "rock parting" were fractured from the
No. 3 entry all the way through to the No. 4 entry and had a
very visible separation. He described the separation as "you
could see as far as you could see back in there and it was
sort of on a slip-like plane. It got deeper as it penetrated
into the coal fractures" in the No. 3 entry going toward the
No. 4 entry (Tr. 70-71).
Mr. Rines explained the circumstances and ap~earances of
the "rock parting" which would give one an indication that
the rib was beginning to become loose and fractured, including
pressure breaks which would cause "the coal raveling a little
bit near the roof line," sloughing of the face of the rib, or
visible cracks (Tr. 73-74). On the other hand, the rib may
just "roll immediately" (Tr. 74).
Mr. Rines was of th~ opinion that the rib conditions
which he observed "had been in the making for awhile," and
that "there had been some indicators as far back as a week,"
and his reason for these conclusions were stated as follows
at (Tr. 74-75):
A.
I would say that there had been some indicators as far back as a week. The reason I
say that is the fact that they didn't have a
fractured rib problem or rib problem over the
entire section. Normally, if you've got rib
problems, it will start either from the left
side of the section and go all the way across
or the right side, all the way across, or go
from the middlev out too
But that wasn 1 t true in this situation
here. This was in this localized area for
this particular section here even though he
did have a loose, fractured rib up here, but
was nothing to the extent that this was
down here (indicating)o

*

*

*

*

*

Ao These ribs did not
from the day we seen
them, on the 14th -- this condition didn't
occur just overnight or over the past three or
four days.
I'm saying there should have been
some indicators or signs there as far back as
a week.
And the reason I say that is if you

1725

had had this kind of relief occurring instantaneously, the ribs would have rolled out and
filled the entry up.

*

*

*

*

*

*

*

Q.

Now I want to turn your attention
well,
let me ask you one more question about this
loose rib condition or all the loose rib conditions on the section. What would Paramont
have had to do to correct the condition if
they had noticed it, say, six days before the
14th?

A. They could have taken down that portion
that was fractured.
* * * I would like to
add, too, some people don't like to cut ribs
down because it exposes more roof, which
requires additional support. So that is why
sometimes they set timbers to support.
Referring again to the sketch, exhibit G-3, Mr. Rines
described the condition of the brows which existed at the
locations shown on the sketch, and he explained the existence
of the brows as follows at (Tr. 79-80):
A. These brows, since they didn't have any
sloughing or undercutting of the bottom portion of the coal seam under the rock parting,
these brows were left there during the continuous mining cycle for whatever time the cycle
had beeno For what reason, I don't know.
But the miner, when he was on his mining
cycle, during the making of these brows, he
failed to cut that portion, which originally
was part of the coal face, and he failed to
cut that.portion of it downo

*

*

*

*

*

*

*

Ao Since he didn't get it the first time, he
definitely -- if they can't get it down no
other way, you know, they could support it
temporarily till he gets back on the second

1726

cycle, and he should definitely take it and
cut it down.

*

*

*

*

*

*

*

Q. What would, in your opinion, a reasonably
prudent section foreman do when he observed
one of these brows after the miner had pulled
out of an entry, a particular en~ry?
A.
He would make arrangements to either have
the brow taken down or supported.

*

*

*

*

*

*

*

Q. Based upon your experience in the thick
tiller seam and your knowledge of the conditions in the Deep Number 13 Mine, of the
mining conditions, do you have any idea, let's
say, for example, how long the brows that are
immediately inby the belt feeder may have been
in existence?
A. Looking from where the belt feeder is
located -- and you have an open crosscut
immediately inby. That is one (1), two (2),
three (3) -- there is four (4) crosscuts to
your most inby brow ribs.
And considering the height of their coal,
they were high producers, but they probably
wouldnit have gotten over eight (8) or
nine (9) at the most, or ten (10) cuts per
shift, which would have probably averaged
about eighteen (18) feet per shift).
So you 1 re talking about several days here
to mine this distance~ that is, from the feeder
up to a short distance of those that are up
there in the last line
open crosscuts.
When you say several days, are you
talking --

Qo

A. Well, at least -- from what I'm looking
here and knowing, you know, the way they mine,
I'm going to say at least ten days, because
this is very high coal.

172.7

Mr. Rines was of the opinion that the brow conditions
in the crosscut immediately inby the belt feeder should have
been apparent to a preshif t or onshif t examiner at least
10-days prior to the time the citation was issued, and that
the brow that was left during the mining cycle should have
been noticed by the next trip of the preshift examiner, as
well as by the section foreman on his shift (Tr. 82).
Mr. Rines confirmed that MSHA Inspector Ronald E. Adkins
works for him, and that he was at the mine on February 10 and
12, 1986. Mr. Adkins informed him that he had not observed
the cited rib and brow conditions (Tr. 93-94). The regularly
assigned inspector, Teddy Phillips, would not have observed
the cited area during his prior inspection visit on
January 10, 1986, because mining was going on in another area
(Tr. 85, 94). Mr. Rines stated that he has had occasion to
visit a mine and found a readily apparent violation that he
had missed the day befor~ (Tr. 95).
On cross-examination, Mr. Rines stated that he discussed
the cited conditions with Inspector Adkins at length because
he was concerned that one could be in the area and miss the
conditions. He confirmed that no disciplinary action was
taken against Mr. Adkins CTr. 96).
In response to a question as to whether or not anyone
walking from inby the belt feeder toward the face in the
No. 3 entry, past the crosscut which he discussed would have
occasion to see the cited rib conditions, Mr. Rines responded
"not if he didn't go in that particular area" and "if he
hadn't went into the crosscut he would not have seen" (Tr.
97-98)
If one were walking on the right side of the entryv
he should have at least observed the brow immediately at the
feederv unless it was hidden by a line curtain. The walkway
was on the left side of the entry (Tr. 98-99).
Mro Rines confirmed that he was present on February 14v
1986v during the accident investigation and heard Mr. Ron
Hamrick a Virginia State Mine Inspectorv make the following
statement (Tro 101)~
I'll add something to that, E.Co
I inspect
that mine regularly.
During an inspection,
takes me three or four days, I go out on all
shifts to do it, and they really impress me.
They watch the ribs.
But I can go in today and have every rib
we find pulled down, cut down, try to knock

1728

out with scoop or take bar and knock down.
I
go in tonight and find more ribs that have
loosened up just between one shift to the next.
I observed this myself.
Mr. Rines confirmed that he was in the mine on one prior
occasion several weeks before February 12, 1986, to look at
some diesel shuttle cars, and while he was in the section
where.the rib and brow conditions were cited, that particular
area had not been mined. Although he did walk the air intake
entry on that occasion, he did not notice any loose.ribs or
overhanging brows (Tr. 106).
Mr. Rines confirmed that if someone were walking on the
left side of the haulway in the No. 3 entry toward the face,
they could easily walk by the crosscut at the feeder and not
notice the ribs, but if they travelled into the crosscut, it
would have been obvious that the ribs were severely fractured
(Tr. 107). However, there were a minimum of seven people on
this section every day, including the section foreman.
Mr. Rines stated that while it was possible for an area where
fractured and loose ribs and brows were taken down to have
the same problem the next day, such an area would also have
serious roof control problems. Shifting roof weight and
bottom coal sloughing out would result in coal brows other
than those which are left from mining (Tr. 111). However, he
saw no such brows on February 14th. Mr. Rines confirmed that
the cited brow and rib conditions were prevalent down the
belt entry in question (Tr. 116).
However, he disagreed that
they were prevalent in the working section, but agreed that
in the belt entry the respondent had set a lot of timbers and
cribs to try to control rib rolls, and that massive ribs
rolls existed in that entry (Tro 117)0
Respondent 1 s Testimony and Evidence
Mine Foreman Ronald R. Orender described the system of
mining being used in January and February, 1986, and he confirmed that the rib work and setting of cribs was done during
the midnight maintenance shift.
He stated that the mine had
some bad bottom conditions and that the ribs were bad (Tr.
130)" Due to a bad and wet uneven mine bottom, the large
12-foot wide ram cars would sometimes tear out the rib cribs.
The ribs would be barred or cut down. The brows in question
which would be left by the miner were difficult to bolt, and
sometimes when the miner returned to cut them down it could
not reach the top, and some brows would be left (Tr. 131).

1729

Mr. Orender described the procedures followed for providing protection along the entry as the belt feeder was advanced
during the mining cycle. He explained that the belt was
usually moved up for two breaks, sometimes once a week, and
sometimes it would take 2 weeks to get up far enough to move.
They would then go back and do the cribbing work outby, especially in the belt line which seemed to be the worst area. He
explained the problems encountered while attempting to timber,
crib, .or otherwise support some of the rib rolls. Ribs were
being pulled inby the belt feeder, and all three ~hifts were
instructed "to try to pull what we could." Some of the brows
that could be reached with the miner were pulled, and others
would stick to the roof and could not be pulled. Attempts
were made to bolt some of the brows, but the bolter could not
get close enough to the rib and "some we may have missed."
Mr. Orender stated further that ribs were constantly being
pulled in the face areas and that "sometimes you would pull
and it would leave a brow" (Tr. 132-134}.
Mr. Orender stated that steps were taken to alert the
work force about the bad rib conditions and that morning
safety talks were conducted, and the miners were constantly
told to watch the ribs and to try to pull down any bad ribs.
He stated that "sometimes they would and sometimes they
wouldn't" CTr. 134). He stated further that a lot of the
ribs which were pulled down would again develop cracks by the
next day, and some would again develop cracks within 24-hours.
However, he could not recall pulling any ribs a day or two
prior to the accident, but knew that some were pulled "over
that way" (Tr. 135).
Mr. Orender confirmed that the rib conditions inby the
belt feed area were particularly bad during January and
February of 1986, and more problems were encountered within
the last 300 to 400 feet of mining in that area, but steps
were taken to protect the miners by installing wire mesh
around the shuttle cars which were not designed for an
enclosed canopy (Tr. 136).
Mr. Orender confirmed that he accompanied the inspectors
at the time the citation was issued, and they called his
attention to a rib that had sloughed off in the tailpiece
area. The crosscut was dangered off, and the next day two
foremen went in with a miner machine and knocked the ribs
down and installed crib blocks in the area. No coal was run
after the accident and hourly miners were not working the
section.
Another fall occurred outby the area, and the conditions worsened. Four to 6 days later the decision was made
that coal could no longer be mined safely and the mine was

1730

closed because of the rib conditions and the outby top, and
out of concern for the safety of the miners {Tr. 138-139).
On cross-examination, Mr. Orender stated as follows at
(Tr. 139-141):
Q. Now, I believe you testified on direct
examination in regard to the working places
that existed on February 14, the-area inby the
tailpiece, that you didn't recall having any~
body pull any ribs for a day or two prior to
the accident.
Isn't that correct? You don't
recall any ribs being pulled for two days
prior to the accident?
A.

Not myself personally, no.

Q. You don't have any knowledge of anybody
doing it?
A.

I

didn't see them.

Q. Nobody told you they pulled any either,
did they?
A. Well, it wasn't a practice to do that. I
mean, if you seen a bad rib, the worker or the
foreman, they would pull a rib, you know, without even, you know -You also talked about you were always telling them to watch the ribs and men were supposed to pull the ribs if they saw a cracked
or fractured rib.

Qo

A.

We tried to, yes.

You tried too
did not do that?

Qo

You said sometimes the men

I'm sure they did.
I'm sure there was
times they did not pull ribs when they should
have.

Ao

Q. What was the company's practice when the
men did not pull a rib they should pull?
A. We would usually ask them, "why did you go
by there?" Or something. And a lot of times

1731

they would answer, "well, we didn't see it."
You know, everybody was aware those ribs were
bad. And we had safety meetings and it was
put in the preshift books where we did have
talks with the men about these ribs, that they
were to be pulled and so forth.

Q. Mr. Orender, isn't it true that if the men
themselves didn't pull the ribs,-that management didn't insist those ribs be pulled?
A.
No, sir.
not true.

You're wrong.

No.

No, that is

Q. Then why in my prior question didn't you
tell me that management went and pulled the
ribs themselves?
A. Management did pull. we pulled ribs ourself. Everybody worked together in that mines
to try to pull what we could when we saw them.
I'm sure we didn't see all of them, you know.
Mr. Orender stated that the respondent's efforts to
address the rib and brow problems were not confined totally
to the maintenance shifts, and that attempts were made to
take them down during the day and evening production shifts
(Tr. 152-153). Mr. Orender agreed that the entries and
crosscuts labeled "hw" on the sketch, exhibit G-3, were the
haulageways down the belt entry, and that they were used for
that purpose some of the time but not necessarily all of the
time.
He also agreed that the battery charging station is
properly located on the sketch and that it would be used to
charge equipment from one shift to the next. Access to these
areas by walking was through several possible routes which he
described (Tr. 155-156). He agreed that none of the brows
which he observed on February 14, 1986, as marked on the
sketch, were supported. Some of the brows were taken down
before the mine was abandoned, and others were not (Tr.
157-158).
In response to a question as to how long the cited conditions may have existed before they were found by the inspector on February 14, 1986, Mr. Orender responded as follows at
(Tr. 158-159):
A.
Your Honor, some of the brows could have
possibly been there for four or five days, but

1732

the rib conditions, like I say, it's hard to
say.
Q.

Go ahead.

A.
Sometimes you could walk by a corner and
there wouldn't be a crack and you go by there
two hours after and the pressure had made a
crack in it. But some of the brows were
probably there, yes.

Q.

And you say, the ribs, the conditions
could exist from day to day.

A.

Yes, sir.

They did, definitely, the ribs.

Q.

How about loose ribs.
I'm not talking
about fractured ribs, but what about some of
the loose ribs.
Is there a distinction
between a loose rib and a fractured rib? Is
there a difference between those two?

A.
In my opinion, a cracked rib maybe is not
as dangerous as one that is real loose where
it could fall.
But then sometimes you could
put a bar on one that you wouldn't think was
very loose and you take two men and try to
pull on it and you couldn't pull it down. And
other times you would touch it and it would
come down.
Mr. Orender identified exhibit R-2, as an inspection
report he signed which indicates that Virginia State Mine
Inspector Ron Hamrick was in the mine on February 3, 1986,
conducting an inspection for 4 hours and that he issued no
violations (Tr. 192-194).
MSHA Inspector Ronald E. Adkins confirmed that he was
familiar with the subject mine, had been in it five or Six
times, and that the sketch depicting the working face areas
(exhibit G-3), which existed in February, 1986 appears basically accurate (Tr. 161-163). Mr. Adkins confirmed that he
was underground in the mine on February 10, 1986, for 2 hours,
and spent the majority of his time in the working faces.
He
reached the working faces by walking up the number three entry
inby the belt feeder as shown on the sketch, and while he was
there he observed no overhanging brows or cracked ribs that
constituted violations of any MSHA regulations. The purpose
of his mine visit was a "walk and talk inspection" for the

1733

purpose of alerting miners as to "what was going on in the
industry so far as accidents and try to get across to them how
critical thei~ own initiative so far as their safety was, how
important it was" (Tr. 165-167).
on cross-examination, Mr. Adkins stated that the working
faces on February 10, 1986, were not as depicted on the sketch
in question, and that they were probably advanced a crosscut
or more. While he was there, line curtains were hung in all
working places (Tr. 168). Referring to his notes of his
February 10, visit, he confirmed several notations indicating
that he examined each of the six working places as depicted on
the sketch, and that th~ working practices he observed were
good. Another notation reflected that 5-foot resin roof bolts
were being installed in all entries and that the bolting
pattern was good.
He confirmed that the work habits and procedures of the miners at that time were adequate (Tr. 168-169).
When asked to explain his failure to observe the violative rib and brow conditions in question, Mr. Adkins responded
as follows at (Tr. 170-171):

* * * Eighty percent (80%) of the fatalities
occur within fifty (50) feet of the face, of
the working faces and, basically, I would say
I spend ninety percent (90%) of my time there.
In this situation on the walk and talk
inspections, we are assigned a group of mines.
We're given, more or less -- we need to finish
these in a certain length of time to get back
to our regular worko
I 1 m sure by looking at
my time sheetsu I was pushed for time on this.
But it is my personal policy and MSHA's
District 5 policy 1 too, when we enter a mine,
we will make the working faces and check for
imminent.dangers.
I'm sure I did that. As
far as seeing these things outby, I just
didn 1 t see them.
I wasn't in the area.

Q.

You say you weren't in the area.

A.
It's possible I could have walked by one.
It could have been behind a curtain.
I could
have been talking to someone or something like
that and not noticed it.

1734

Q. Okay. Are you telling me on tnat day you
didn't go in specifically to check roof conditions or ribs and brows or fractured ribs,
that sort of thing?

Q. No, sir. That is always our number one
priority, but the inspection, the walk and
talk inspection, is more to make contact with
the people, to get on a one-to-o~e basis with
them, talk to them. We talk to them in a
group, watch them work and discuss their work
habits. That is basically what I was there
for that day.
Ronald Hamrick, State of Virginia Coal Mine Inspector,
;tated that he has inspected the subject mine since it began
operating and that he has been in it five or six times. He
confirmed that he participated in the fatality investigation
on February 14, 1986, and he identified exhibit R-1 as a
partial transcript of a statement that he made during the
course of a conference held on that day with several MSHA
inspectors in connection with the investigation, and read
parts of the statement into the record (Tr. 175-177>.
A.
I'll add something to that, E.C.
I
inspect that mine regularly. During an inspection, which takes me three or four days, I go
out on all shifts to do it, and they really
impress me. They watch the ribs.
But I can go in today and have every rib
we find pulled down, cut down, try to knock it
out with a scoop or take a bar and knock them
downo
I go back in tonight and find more ribs
have loosened up just between one shift and
the nexto
I observed this myself. And while I'm
running my big mouth, I would like to add
something to find a way of preventing this
accidentF but let 1 s not jump off the deep end
and come up with some rig that would cause
these miners to be exposed to more danger than
what the conditions we already have.
Ron and I have talked about trying to
design a protection for rib rolls, but we
agree, as you said, E.C., rib rolls are not a
problem right at the immediate face, but

1735

actually past them but in behind them, two
crosscuts back is where the ribs start loosening up and and moves and so on.
But let's not come up with some
half-cocked idea that would expose people to
more hazards.
Mr. Hamrick confirmed that he was familiar with the mine
layout as depicted in the sketch, exhibit G-3, anp he confirmed that the rib and brow conditions marked on the sketch
"probably" existed generally in the area two crosscuts back
from the face.
Other than the rib conditions in the mine, he
described the general mine conditions as "as average type
mining" (Tr. 180). He stated that from his experience in the
mine, everyone, including employees and management, were
aware of hazardous rib conditions, which he believed were
inherent in the Clintwood seam, and that all personnel were
constantly on the alert for these conditions, pulling them
down when they were discovered. He confirmed that he constantly gave advice to management as to how to guard against
the rib conditions, and stated that he never previously discussed these conditions with MSHA inspectors Rines, Coeburn,
or Phillips. Mr. Hamrick also stated as follows at (Tr. 181):
A. Well, as I say, this is an inherent condition with the Clintwood seam. There isn't
much you can do to these ribs and brows other
than watch them, take them down as they're
discovered and as they loosen up.
In past experience, I've tried bolting
ribs.
I 1 ve tried putting steel bands around
ribs to hold them togethero
I 1 ve tried
numerous thingso
In some thirty-seven (37)
yearsu experiencev I never did find anything
that was actually a way of handling unsafe
ribs other than watching them, stay away from
them as much as possible.

Mr" Hamrick stated that he went over the entire section
the mine on February 14, 1986, and with respect to the
brow cond·sions noted on the sketch, exhibit G-3, he confirmed
that he observed unsupported brows, but could not recollect
how many he observed and could not remember counting them (Tro
184). He confirmed that he did observe the ribs between the
number 3 and 4 entries shown on the sketch, and that he issued
a citation for those conditions (Tr. 185). He also confirmed
that the cited rib conditions wer8 also in the area between

1736

the belt feeder and the battery charger CTr. 188). However,
he could not state how long the conditions had existed, and
stated that such rib conditions "occurred unexpectedly, and
often, quite frequently" (Tr. 188). He also stated that the
brow conditions which are outby the face areas were probably
caused by the coal rolling out from under them, and he doubted
that they were caused by a continuous miner leaving them on a
prior shift because "the men at the mine were so particular
and so self-conscious of the fact that these were hazardous
they would not leave one" (Tr. 190). However, he. could not
explain why the cited brow conditions were not taken care of
prior to February 14th when the MSHA inspectors found them
(Tr. 190). He also stated that it was entirely possible that
the brow conditions came about over a short period and possibly a day, but confirmed that he was not with the inspectors
when they viewed the cited brow conditions and issued the citation (Tr. 191). He confirmed that his citation may have been
for the same or similar conditions cited by the MSHA inspectors and that he required the ribs or brows to be removed or
supported (Tr. 191}.
Mr. Hamrick stated that under state regulations, he does
not make any negligence findings as part of any citations he
issues. He confirmed that while he had no idea how long the
conditions cited by the MSHA inspectors may have existedf
they may have been there "for hours or days." He further
explained that "I have observed by going in on one shift and
following immediately, the next shift, brows have loosened up
between shifts" (Tr. 192).
Petitioner's Negligence Arguments
During oral argument at the close of its case in response
to the respondentus motion for a summary dismissal of this
case (which was denied)p petitioner 1 s counsel asserted that
the testimony of the inspectors makes it clear that the cited
rib and brow conditions were readily observable for as much as
a week prior to the February 14u 1986 inspection, and that the
conditions existed in areas which were regularly travelled and
required to be examined by onshift and preshift examiners.
Given these factsf counsel concluded that there is a clear
inference that the respondent 1 s personnel knew or should have
known of the conditions for a week or 10-days prior to the
inspection. Under the circumstances, counsel took the position that the respondent was "very negligent-if not grossly
negligent" (Tr. 121-122).
Petitioner's counsel asserted that in addition to the
testimony of the inspectors, Mine Foreman Orender confirmed

1737

that he was aware of brows which were not taken down or
supported because it was impractical to do so due to the use
of oversized ram cars which were knocking down the cribs.
counsel further asserted that the evidence establishes that
the brows had been in existence since they were created by
the continuous-mining machine during the normal mining cycle,
and that Mr. Orender specifically admitted that no ribs had
been taken down on the section for at least 2-days prior to
the inspection. Counsel concluded frem this that no brows
were created by rib rolls for at least 2-days pri9r to the
inspection, and that they were in fact created by the mining
machine (Tr. 196-198).
Petitioner's counsel took the position that mine management had knowledge of the cited conditions, knew what should
have been done to correct the conditions, but did not take
the appropriate action mandated by the Act. Counsel asserted
that "the standard is not· what is reasonably practical in the
operator's mind, but whether the operator's conduct is reasonable in view of the standard mandated by the Act 11 (Tr. 196).
Counsel suggested that section 75.202, mandates that loose
ribs and overhanging brows be immediately taken down or
supported. He cited Westmoreland Coal Company, 7 FMSHRC 1338
(September 1985), as an example of a case where a mine operator's negligence was lowered because of evidence that he had
immediately tried to support or take down overhanging ribs.
In the instant case, however, counsel asserts that the respondent did not give immediate attention to the cited conditions,
and that the brows, at least, had been in existence since they
were created by the continuous miner <Tr. 98}. Conceding that
the respondent may have taken appropriate action in other mine
areasp counsel concluded that this was not done in the areas
which were cited by the inspector (Tr. 210).
Responding to the respondent's suggestion that the cited
brow conditions were left after the rib had rolled, counsel
stated that if this were the case, the respondent should have
put on some direct evidence to support such a conclusion.
Counsel took the position that any inferences that the brows
were left by rib rolls is directly contradicted by the inspectors" observations of teeth marks made by the continuousmining machine at each
the brow locations, and that "those
teeth marks obviously would not be there if the brow was
created by a rib roll" (Tr. 208).
Petitioner's counsel filed a written posthearing brief,
and the arguments advanced are essentially the same as those
made during the course of the hearing. With regard to the

1738

cited conditions, counsel relies on the testimony of Inspectors Coeburn and Rines that all of the brows they observed
were created by the continuous miner, and Mine Foreman
Orender's testimony that many of the brows were created by
the miner. Counsel also relies on the inspectors' testimony
that the brows may have existed for 6 to 10-days prior to the
inspection, and Mr. Orender's admission that they may have
been present for 4 or 5 days.
With regard to the cited rib conditions, coupsel points
out that Inspector Rines observed a visible separat~on
between the loose ribs and the remaining block of coal, and
was of the opinion that the separation had been apparent for
about a week, and Mr. Orender's statement that it was hard to
say how long the ribs had been in that condition. Counsel
concludes that the violation resulted from the respondent's
unwarrantable failure to comply with the cited standard.
Respondent's Negligence Arguments
Respondent's negligence argument is based on mitigating
circumstances, and counsel points out that the petitioner had
people at its disposal who could have testified as to the
respondent's past practices and mine history, but chose only
to call people who had no real experience with the mine (Tr.
124). Counsel states that the respondent was well aware of
the existing mine conditions, but instructed its employees to
watch out for the conditions and that it was doing everything
that was reasonably practical to control the conditions.
When the respondent concluded that the worsened conditions
could not be safely controlled, the mine was shut down (Tr.
195)0
Taking issue with the petitioner's characterization of
Mine Foreman Orender's testimony, respondent's counsel asserts
that Mr. Orender simply stated that he was personally unaware
of any ribs being taken down for 2-days prior to the inspection. Counsel points out that Mr. Orender also testified that
because of the instructions given to the miners, they would,
on their own initiative, routinely take down any loose ribs
they encountered. Since it was such a common occurrence, they
would not necessarily report it to the mine foreman (Tr. 205).
Counsel also points out that in addition to the testimony of
Mr. Orender, a man with long experience in the mine, the
respondent also presented the testimony of state mine inspector Hamrick, the only disinterested witness in this case, and
the testimony of an MSHA inspector who was in the mine 2 to
4-days prior to the inspection on February 14, 1986, whereas

1739

the petitioner has presented testimony from two inspectors who
were in the mine for a total of 1 or 2 days (Tr. 205-206).
Referring to the negligence criteria found in Part 100
of MSHA's civil penalty assessment regulations, 30 C.F.R.
§ 100.3(d), counsel points out that three of the negligence
categories, "low," "moderate," and "high," are all based on
one common factor, namely whether the operator "knew or
should have known of the violative coadition or practice."
What distinguishes the three levels is the existence of "considerable mitigating circumstances," "mitigating circumstances," and "no mitigating circumstances" (Tr. 206).
Counsel asserts that the circumstances relied on by the
respondent to mitigate its negligence consists of its history
in dealing with adverse rib and brow conditions, the testimony of state mine inspector Hamrick, who inspected the mine
on a regular basis and be'lieved that the cited conditions
could have existed for less than a few hours, and the particular circumstances with the particular coal seam where rib
rolls occurred either instantaneously or over a very short
period of time, leaving loose ribs and brows (Tr. 207).
Counsel maintains that the respondent took significant steps
to protect its employees from the roof and rib conditions
present in the mine, including the designing and installation
of personnel protective devices beyond those mandated by
MSHA, and the constant reminding of its employees to watch
the rib conditions (Tr. 134, 136).
Counsel states that Inspector Coeburn, by his own admishad no knowledge of the history of the mine, that the
ioner did not produce Inspector Phillips, the regular
MSHA inspectorf. and that the petitioner 0 s perception of this
mine is on a very narrow time frameo
On the other hand,
counsel points out that the respondent has relied on the testimony of its experienced mine foreman, an MSHA roof control
specialist (Adkins) who was in the mine 2 to 4-days prior to
the inspection and who did not observe the cited conditions,
and
state inspector who knew the history of the mine and
who testified that the respondent was actively concerned
about the cited conditions and was taking all appropriate
to deal with them (Tro 207)"
~

Respondent's counsel filed a written posthearing brief
and essentially advanced the same arguments made orally during the course of the hearing. Counsel cites a decision by
Commission Judge Melick in MSHA v. Rushton Mining Company,
5 FMSHRC 2081 (December 1983), in support of his argument

1740

that the failure of MSHA Inspector Adkins to observe the conditions when he was in the mine, coupled with the testimony
of State Inspector Hamrick, belies the petitioner's assertion
that the cited rib and brow conditions had existed for at
least 4-days prior to the date of the citation. Counsel
cites Judge Melick's observation at 5 FMSHRC 2083-2084:
It is not disputed that Klemick was indeed
present in the same mine section~two days
before, as alleged, but he claims not to hav~
noticed the rib conditions because he was concentrating on another violation. I find it
difficult to believe, however, that an experienced miner and mine safety inspector would be
so oblivious to conditions he characterized as
"an imminent danger" if they were as obvious
and dangerous as he alleges. Thus while there
is no doubt that overhanging rib conditions
did exist with detectable fractures, I do not
find that the conditions were as obvious as
now alleged by MSHA. Accordingly, while I
find the operator to have been negligent in
allowing the cited conditions to exist, I do
not find it to have been grossly negligent.
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 CoFoRo § 75o202u which requires in pertinent part that "Loose roof and overhanging or loose faces and
ribs shall be taken down or supportedo 11 Although the standard does not specifically refer to "brows," the parties are
in agreement that a "brow" is akin to an overhanging rib and
is located in area where the rib ends and the roof starts
(Tro 197)0 In any event, the respondent has conceded that
the cited rib.and brow conditions were present, that they
were not taken down or supported, and that the cited conditions constituted a violation of section 75.202. Accordingly,
the violation IS AFFIRMED.
History of Prior Violations
Exhibit G-1 is an MSHA computer print-out summarizing
the respondent's compliance record for the period August 1,
1984 through August 13, 1986. That record reflects that the
respondent was issued nine section 104(a) citations, and one
combination section 104{a) - 107(a) citation-order, for which

1741

it paid civil penalty assessments totalling $386. Two prior
section 75.202 roof control violations issued in 1984 were
assessed a total of $161, and two section 75.200 violations
issued in 1985 were assessed at a total of $70. For an operation of its size, I conclude and find that the respondent has
a good compliance record, and I find no basis for otherwise
increasing the civil penalty assessment for the violation
which has been affirmed in this case.
Size of Business and Effect of Civil Penalty on the
Respondent's Ability to Continue in Business
The parties have stipulated that the respondent is a
medium-size coal operator and that a civil penalty assessment
for the violation in question will not affect its ability to
continue in business. I adopt this stipulation as my finding
and conclusion on this issue.
Good Faith Compliance
The parties have stipulated that the violation was
timely abated by the respondent.
Inspector Coeburn confirmed
that after the citation was issued, the respondent dangered
off the cited area by placing boards and a sign across the
entry and marked off the affected areas with spray paint (Tr.
46-47). Under these circumstances, I conclude and find that
the respondent exercised good faith compliance in timely
correcting the violative conditions.
Gravity
The record in this case establishes that at the time the
citation issued, the mine was idle due to a fatality which had
occurred, and that it was subsequently closed when the roof
conditions worsened. There is no evidence that any normal
mining activities, other than abatement work, took place subsequent to the issuance of the citationo HoweverF the fact
remains that the existing loose ribs and overhanging brows,
which were unsupported, and present on the working section,
did present a potential hazard to those miners expected to
travel and work in the affected areas immediately prior to the
inspection. As a matter of factv the unrebutted testimony of
Inspector Coeburn reflects that some of the brow conditions
were present along a belt walkway normally used for travel by
miners and that the loose ribs which he cited were readily
barred down with little or no effort.
Inspector Coeburn also
confirmed that the cited rib and brow conditions were present
along haulageways and entries where miners and equipment would
be present during normal mining activities, and that given the

1742

conditions of the ribs, a scoop or anything coming in contact
with the ribs could have easily caused them to roll. Further,
the testimony of Mine Foreman Orender confirms that the rib
and brow conditions were bad in the affected area in question
and that oversized mining machines often tore down the cribs
used to support the ribs. Mr. Orender also confirmed that
brows which were difficult to bolt or which were inaccessible
because of their high locations were sometimes left in place.
Given.all of these circumstances, I cQnclude and find that the
cited violative rib and brow conditions were serious.
,.
Significant and Substantial Violation
A "significant and substantial" violation is described
in section 104(d}(l} of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 8l~(d)(l}. A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822,
825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove~
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in

1743

an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
St'eel Mining Company, Inc., 6 FM5HRC 1573,
1574-75 (July 1984).
·
Incorporating by reference my gravity findings, and
applying the principles of a "significant and substantial"
violation as articulated by the Commission in the aforementioned decisions, I conclude and find that the cited rib and
brow conditions constituted a significant and substantial
violation of section 75.202. Although it may be true that no
coal was being mined at the time the violative conditions
were observed and cited, and the mine was later closed
because of adverse roof conditions, in terms of continued
normal mining operations, the adverse rib and brow conditions
which were present on the working section presented a real
hazard and potential for rib rolls and falling brows, and I
conclude and find that there was a reasonable likelihood that
the loose overhanging coal and rock brows and fractured ribs
could contribute to the hazards resulting from the violative
conditions in question.
I further conclude and find that had
the unsupported ribs or brows rolled or fallen, and struck
miners on foot or in equipment passing by the areas where
they were located, injuries of a reasonably serious nature
would have resultedo Accordingly, the inspector's nsignificant and substantial" finding IS AFFIRMEDo
Negligence
In support of Inspector Coeburn's "high negligence" finding, petitioner relies on his testimony, as well as the testimony of Inspector Rines, who was with Mr. Coeburn. Both
inspectors personally viewed and examined the cited rib and
brow conditions, and Mr. Coeburn took measurements and counted
the overhanging brows. Both inspectors were of the opinion
that the unsupported brows had been created by the continuous
miner during prior mining cycles. Based on their observations
of the miner cutting bit marks left in the coal ribs, and the
advanced mining cuts which had been taken, they believed that
the brows had existed for at least six to seven production
shifts, and possibly as long as 10 days. As for the loose and
fractured rib conditions, both inspectors testified that they
were readily visible, and that visible separations were

1744

readily observable between the loose rib areas and the block
of coal. Inspector Rines was of the opinion that the separation had been apparent for at least a week, and he discounted
any notion that the separation had occurred quickly.
In his
view, had the separation occurred quickly, there would have
been a massive rib roll into the entry.
Petitioner also relies on the testimony of Mine Foreman
Orender, and points out that MrG Orender conceded that many of
the brows were created by the continuous miner and were possibly present for 4 to 5-days prior to the issuance' of the citation.
Petitioner also points out that Mr. Orender admitted
that sometimes brows were left by the miners, that he had no
knowledge of any rib rolls, or any ribs being pulled, for a
day or two prior to the day the citation issued, and his admission that it was difficult to say how long the ribs had been
in a loose and fractured condition. Finally, petitioner
points out that while res·pondent 1 s representative Gary Sweeney
accompanied the inspectors and viewed the cited conditions,
the respondent did not call him to testify in this case.
In support of its argument for a finding of "low negligence with considerable mitigating circumstances," respondent
maintains that the violative conditions were constantly being
created because of the inherrent nature of the mine strata,
and that it had effective procedures to deal with such conditions as they occurred. Respondent maintains that it took a
number of steps to protect its work force and that this should
be considered as mitigating circumstances ia determining the
appropriate negligence levelo
With regard to the issue of the length of time that the
cited conditions actually existedu respondent relies on the
testimony of State Inspector Hamrick who testified that the
nature of the mine was such that the cited brow and rib conditions could occur overnight or even between shifts. Respondent also relies on the testimony of MSHA Inspector Adkinsr
who was in the mine on two occasionsu within 4 days of the
issuance of the citation, and confirmed that he did not see
the cited conditions and issued no citations.
Inspector Hamrick could not recall the date of his last
visit to the mine prior to the date of the issuance of the
citation on February 14, 1986. Although a copy of one of his
inspection reports, exhibit R-2F reflects that he was in the
mine on February 3, 1986, Mr. Hamrick had no independent
recollection of that visit. With regard to the rib and brow
conditions cited by Inspector Coeburn, and detailed in the
sketch made by Mr. Coeburn from his notes, Mr. Hamrick agreed

1745

that the conditions probably existed generally one or two
crosscuts cutby the face area. Mr. Hamrick confirmed that he
issued a citation on February 14, 1986, for a violation of
state law for brows and ribs which were not removed or sup~
ported. However, he was not sure whether his citation covered
the same rib and brow conditions cited by Mr. Coeburn, and he
explained that he was not with the Federal inspectors when
Mr. Coeburn issued his citation and did not discuss the conditions ·with them.
Respondent relies on Mr. Hamrick's testimony concerning
its practices and efforts at controlling and addressing its
inherrent adverse rib and brow conditions to mitigate its
negligence. Mr. Hamrick's unrebutted testimony is that
respondent's management and employees are constantly on the
alert for hazardous rib conditions "pulling them down when
they are discovered." Mr. Hamrick iindicated that anytime he
was in the mine, overhan~ing brows at the face area were
always taken down. When asked about the cited areas outby
the face, Mr. Hamrick surmised that the overhanging brows
could have been caused by rib rolls. Conceding that the
brows could have been left by a continuous miner during a
prior mining cycle, Mr. Hamrick nonetheless believed that
respondent's responsible miners would not leave them in that
condition. However, he had no explanation as to why the brow
and rib conditions which he and the MSHA inspector cited were
undetected and left unattended other than his speculation
that they were possibly caused by unexpected rib rolls over a
short period of time.
With regard to the question as to how long the particular
cited brow and rib conditions may have existed prior to the
date of the issuance of the citation, Mr. Hamrick testified
that it was entirely possible that they came about over a
short period of time, even one day. However, he was not sure
if he observed all of the cited conditions, and he conceded
that he was not with the MSHA inspectors when they viewed the
conditions and confirmed that he did not discuss them with the
inspectorso He also conceded that while he observed unsupported brows on the section, he had no recollection as to how
many he may have observed and confirmed that he did not count
them. With regard to the rib and brow conditions which he
cited, Mr. Hamrick had no knowledge as to how long they may
have existed prior to the issuance of the citation and indicated that they may have been there "hours or days."
Although I find Mr. Hamrick's testimony with respect to
the respondent's general efforts at addressing and controlling

1746

adverse rib and brow conditions to be credible, and have considered this as a general mitigating factor, I find it of
little value in determining respondent's negligence level with
respect to the specific cited rib and brow conditions which
formed the basis for the citation issued by Inspector Coeburn
on February 14, 1986. I take note of the fact that while
Mr. Hamrick also issued a citation for possibly the same or
similar rib and brow conditions cited by Mr. Coeburn,
Mr. Hamrick made no negligence findin~s with respect to his
citation, and he apparently is not required to do .. so under
state law.
With regard to the failure by Inspector Adkins to cite
any violations during his prior mine visits, although petitioner finds his failure to do so to be inexplicable, it
points out that the issue here is whether the respondent was
negligent, not MSHA.
Petitioner takes the position that any
failure by Mr. Adkins to ·act may not excuse or mitigate the
respondent's negligence (Tr. 12). Respondent's counsel took
the position that while Mr. Adkins' prior visits may mitigate
its negligence, his prior presence in the mine, as a factual
matter, simply indicates that had the cited conditions existed
when he was there, he would have issued a citation. Counsel
concluded that the reason Mr. Adkins did not issue a violation
during his mine visits is that he did not observe the conditions, and that his failure to observe them reflects that they
did not exist at that time (Tr. 14).
It is clear that the fact that Inspector Adkins did not
cite any violative conditions during his prior visit to the
mine did not preclude Inspector Coeburn from citing violative
conditions which he personally observed. Midwest Minerals,
Incov 3 FMSHRC 251 (January 1981)3 Missouri Gravel Co.,
3 FMSHRC 1465 (June 1981); Servtex Materials Company, 5 FMSHRC
1359(July 1983); Brubaker-Mann Incorporated, 8 FMSHRC 1487
(September 1986}.
In other words, the failure by one inspector to issue a citation for mine conditions which may be later
viewed as a violation by another inspector may not serve as a
per se defense to the violation. However, the failure by
Mr. Adkins to issue a violation when he was in the same section several days earlier may be considered as an evidentiary
factor in any determination as to whether or not the conditions cited by Mr. Coeburn may have existed or were left
unattended prior to the time Mr. Coeburn issued his citation
on February 14, 1986.
Inspector Adkins testified that he was in the section on
February 10 and 12, 1986, pursuant to an MSHA roof evaluation
and accident prevention program, and he characterized his

1747

visit as a "walk and talk inspection" with mine personnel for
the purpose discussing safety and accident prevention.
His
duties included the observation of miner work habits and work
procedures.
He confirmed that he was on the section for
approximately 2 hours on February 10, and that ventilation
curtains were hung throughout the section. He confirmed that
he walked up the No. 3 belt entry, past the belt feeder, went
directly to the working faces by walking up the belt entry,
and spent the majority of his time at~the faces.
He was sure
that on February 10, the working faces were not as depicted
on the map, exhibit G-3, because mining had advanced one or
more crosscuts by February 14th. Although he was certain
that he checked the faces for imminent dangers, he did not
observe any of the cited rib or brow conditions outby the
faces because he was not in that area. However, he conceded
that it was possible that he may have walked by some of the
ribs or brows that could have been behind a curtain, and may
not have noticed them whtle talking to someone.
Mr. Adkins testified further that during his prior visits
on February 10 and 12, 1986, he conducted "safety talks" at
the dinner hole by the power center in the No. 4 entry as
shown on exhibit G-3.
He was not certain how he would have
travelled to that location, and indicated that it was possible
that he walked up the No. 3 entry and across the crosscut
beyond the feeder in the No. 3 entry and then over to the
No. 4 entry. From that point, he would have proceeded
directly to the face area by walking directly up the No. 4
entry.
I take note of the fact that Inspector Coeburn found
no violative rib or brow conditions in the No. 4 entry near
the power center, or in the connecting crosscut between the
No. 3 and No. 4 entries.
After careful review of the testimony of Inspector
Adkins, I am not convinced that he actually travelled all of
the areas where the cited brow and rib conditions were
observed by Inspectors Coeburn and Rines. Mr. Adkinse travels
apparently took him directly to the faces along the No. 3
entry, and along the No. 4 entry and a crosscut where no brow
or rib conditions were cited. Further, his testimony that
line curtains were hung throughout the section, thereby possibly obstructing his view, and that he was preoccupied with
safety talks and his "walk and talk" inspection, and the fact
that the mining cycle when he was there did not appear as
advanced as it was on the day the citation was issued, raise
doubts in my mind that the then prevailing mining conditions
were the same when Mr. Adkins was in the section several days
prior to the issuance of the citation.
I also doubt that he
actually travelled all of the same areas where the cited rib

1748

and brow conditions existed. Under the circumstances, I
reject any notion that the testimony by Mr. Adkins reasonably
supports any conclus~on that the cited rib and brow conditions did not exist during his prior visits to the mine.
With regard to the Rushton decision cited by the respondent, I take note of the fact that the inspector who Judge
Melick referred to actually issued the violation which was
affirmed. Judge Melick simply found that the failure by the
inspector to previously observe conditions which he characterized as an 11 imminent danger" did not support MSHA·,· s .proposed
finding of "gross negligence." However, Judge Melick did
find that the operator was negligent for allowing the cited
conditions to exist.
I conclude and find that the cited rib and brow conditions did not occur overnight, as suggested by the respondent,
or immediately before the· issuance of the citation on
February 14, 1986. To the contrary, I believe that the testimony of Inspectors Coeburn and Rines, and Mine Foreman
Orender, which I find credible, supports a conclusion that the
cited conditions had been created by the continuous-mining
machine during prior mining shifts and had existed for at
least 2 days, and possibly longer.
I further find and conclude that the failure by the respondent to observe the loose
ribs and overhanging brows and to take appropriate action to
either take them down or support them resulted from its negligent failure to exercise reasonable care.
I have taken into consideration as general mitigating
circumstances the respondent's past 2-year good compliance
record~ which includes only four prior violations of the roof
control requirements of section 75.200, and no prior violations of section 75.202.
I have also favorably considered
the respondent 1 s generally good attitude towards safety, and
the steps taken to control the apparent inherent adverse roof
conditions in the mine. However, the fact remains that whi
the respondent may have generally given timely attention to
hazardous brow and rib conditions in the mine, I find no
credible evidence to suggest that it did so with respect to
the particular brow and rib conditions observed and cited by
the MSHA inspectors. As a matter of fact, the record here
shows that State Inspector Hamrick issued a citation the same
day in the same section for hazardous rib and brow conditions,
and Mine Foreman Orender admitted that brows were sometimes
left unattended in high locations, that management sometimes
would not see all of the brows, and that at times miners would
not pull down loose ribs.
Under all of these circumstances, I
find no mitigating circumstances warranting a finding that the

1749

cited conditions resulted from a low or moderate degree of
negligence.
I believe that a reasonable interpretation of section
75.202 would require mine management to insure that loose
ribs and overhanging brows be taken down or supported during
the same working shift if miners are expected to work in those
areas, or at least during the next working or maintenance
shift.when miners may be expected to work and may be exposed
to the hazardous conditions. Since I have found that the
cited conditions existed during prior mining cycles in areas
where miners would be working and travelling, it follows that
the respondent's failure to timely address and correct the
conditions before they were found by the inspectors supports
Inspector Coeburn 1 s finding of "high negligence." Accordingly, that finding IS AFFIRMED.
Petitioner's posthearing assertion that the violation
resulted from the respondent's "unwarrantable failure" to
comply with the requirements of the cited standard IS
REJECTED. This is not a viable issue in a civil penalty
proceeding. See MSHA v. Black Diamond Coal Mining Company,
7 FMSHRC 1117 (August 1985); MSHA v. Brown Brothers Sand
Company, 9 FMSHRC 636 (March 1987). In any event, I find no
credible testimony or evidence to support a finding of willful intent or reckless disregard for the requirements of the
cited safety standard.
Civil Penalty Assessment
During his opening remarks at the hearing, with respect
to his suggested $2,000 civil penalty assessment in this
casev petitioner's counsel asserted that MSHA's Office of
Assessments was not aware "of the significance and the dangers and the number of violations that actually were written
up in the one violation.
I believe the violations were more
serious and more negligent than the assessment off ice apparently believed" (Tr. 13). During closing arguments, and in
further support of his request for a $2,000 civil penalty
assessment, counsel cited three decisions concerning rib and
brow violations in which substantial penalties were levied by
Commission judgesF Westmoreland Coal Company, 7 FMSHRC 1338
(September 1985); Valley Camp Coal Company, 7 FMSHRC 138
(January 1985), Jim Walter Resources, Inc., 7 FMSHRC 263
(February 1985) (Tr. 208-210).
Westmoreland Coal involved an overhanging rib condition
which resulted in fatal injuries to a scoop operator. The
presiding judge found that the violation was the result of an

1750

"unwarrantable failure" to comply with section 75.202, because
of a section foreman's knowledge of the violative condition
and his failure to take corrective action through indifference
or lack of reasonable care. The Commission reversed, and
found that the overwhelming weight of the evidence established
that repeated efforts to remove the overhanging rib, coupled
with the good faith belief on the part of miners and others
during their attempts to bar down the rib and that no hazard
existed, could not support a finding that the foreman's action
in allowing work to proceed represented the degre~ of aggravated conduct intended to constitute an unwarrantable failure
under the Act.
Valley Camp involved an overhanging rock brow that fell
and killed a roof bolter. The judge found a violation of
section 75.202, and affirmed a section 104(d)(2) unwarrantable
failure withdrawal order, and he did so on the basis of evidence which established that a section foreman was aware that
the roof had fallen in the accident area immediately prior to
the brow fall which killed the bolter, but did not take the
time to thoroughly evaluate the residual roof conditions, and
allowed production to resume without first examining the work
place to determine whether any hazards remained. Further,
mine management had a policy which allowed overhanging brows
to remain in work areas as long as they were no more than
2 feet thick. Given these circumstances, the judge found that
the violation resulted from "gross negligence," an "unwarrantable failure" constituting indifference, willful intent, or a
serious lack of reasonable care.
Jim Walter Resources involved a violation of section
75.202v because of loose hanging roof conditions, broken roof

bolt plates which allowed loose roof to fall out between the
broken roof bolts, roof stress requiring additional roof bolting which was not done, and cracks between roof bolts in
various places& The judge found that the conditions had
existed for a "substantial period" before the inspection, but
his decision contains no discussion of the fact used to support that conclusion. The judge found that the violation was
"unwarrantable" because the operator "knew, or with the exercise of reasonable care should have known, of the hazardous
roof conditions.n
Aside from the fact that I am not bound by the prior
judge's decisions cited by counsel, I take particular note of
the fact that those decisions were based on the facts there
presented.
In each instance, the judge made his factual findings on the basis of credible evidence indicating egregious
situations where the mine operator's failure to act was the

1751

result of either gross negligence, indifference, or willful
intent which directly resulted in fatalities in two of the
cases. I find no such circumstances present in the case at
hand.
With regard to counsel's conclusions concerning MSHA's
assessment off ice evaluation of the negligence and gravity
connected with the violation, my review of the "Narrative
Findings" supporting the 11 special 11 civil penalty assessment
of $850, which is a part of the pleadings, reflects a detailed
analysis as to the cited conditions, their locations, the
particular hazards presented by the conditions, and the respondent's negligence. Under the circumstances, I disagree with
counsel's unsupported conclusions, and find that the assessment off ice adequately evaluated the facts and circumstances
presented by the violation. Under the circumstances, I conclude and find that the proposed civil penalty assessment of
$850 is reasonable and appropriate for the violation which has
been affirmed.
ORDER
Respondent IS ORDERED to pay a civil penalty assessment
in the amount of $850 for the violation in question, and payment is to be made to MSHA within thirty (30) days of the
date of this decision. Upon receipt of payment, this proceeding is dismissed.

tt~~-~~

{fi!7~ge/A~ Koutras

Administrative Law Judge

Distribution:
Page H. Jacksonv Esq.u Office of the Solicitor, U.S.
Department of .Laboru 4015 Wilson Boulevard, Room 1237Au
Arlingtonv VA 22203 (Certified Mail)
Karl K. Kindig, Esq.u Paramont Coal Corporation, P.O.
Box 1357u Abingdonv VA 24210 (Certified Mail)

/fb

1752

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

22041

OCT 7 1987
CHARLES McGHEE,

DISCRIMINATION PROCEEDINGS
Complainant

and

Doc~et No. SE 86-98-D
BARB CD 86-16

JACKIE LOWE,
Docket No. SE 86-99-D
BARB CD 86-17

Complainant

v.
No. 2 Mine
AMERICAN STANDARD COAL SALES,
INC., H. CAMERON COAL CO.,
INC. , SCARAB ENERGY CORP·. ,
and WINSTON MEREDITH,
Respondents
ORDER OF DISMISSAL
Before:

Judge Maurer

The Complainants, Charles McGhee and Jackie Lowe, request
approval to withdraw their complaints in the above-captioned
cases on the grounds that a mutually agreeable settlement of
the underlying controversy has been reached. Under the circumstances
, permission to withdraw is granted. 29
C.F.R. § 2700.
The cases are therefore dismissed.
At the
st of the parties, the specific terms of the
settlement
are hereby sealed subject to review only
by order of the Commissionr a Commission judge, or Court having jurisdiction.

~<J/111~
.:r.i

Roy
Mb,urer
Admi&trative Law
Distribution:

Dorothy B. Stulberg, Esq., Mostoller and Stulberg, 136 South
Illinois Ave., Suite 104, Oak Ridge, TN 37830 (Certi
Mail)
Philip N. Elbert, Esq., Neal & Harwell, 2000 One Nashvil
Place,
150 Fourth Ave. North, Nashville, TN 37219 (Certi ed Mail)
J. Michael Winchester, Esq., Lacy & Winchester, P.C., Suite
2510, Plaza Tower, 800 South Gay St., Knoxville, TN 37929
(Certified Mail)
yh
1753

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

22041

OCT 8 1987
LOCAL UNION 1248, DISTRICT 5
UNITED MINE WORKERS OF

..

AMERICA ( UMWA) ,

COMPENSATION PROCEEDINGS
Docket No. PENN 87-187-C

Complainant
Maple Creek Mine

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

ORDER· OF DISMISSAL
Before:

Judge Melick

Complainant requests approval to withdraw its Complaint
in the captioned case based upon a settlement of the matter
at issue. Under the circumstances herein, permission to
withdraw is granted. 29 C.F.R. § 2~ QO.ll. Thi'~ case
1
therefore dismissed.
./l .
\
.·1·
'
\
~_.....,
\ /l'\,,. /,.
!
\,,

ir

1

l /\

1\

\.

.\ \

'·\1
', '

\\ .. t ..,

"~~

Gary Melick
Administrative Law Judge
(703) 756-6261
Distribution:
Joyce A. Hanula, Legal Assistant, UMWA, 900 15th St. N.W.,
Washington, DC 20005
(Certified Mail)

Ed Sullivan, Superintendent, U. s. Steel Mining Co., Inc.,
Maple creek Mine, Valley Shaft, R.D. #2, Eighty-Four, PA
15330 (Certified Mail)
npt

1754

'-·

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

OCT 8 1987
HIGHWIRE, INCORPORATED,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent

CONTEST PROCEEDING
Docket No. KENT 86-166-R
Citation No. 2776209; 8/27/86
No. l Mine

ORDER OF DISMISSAL
Appearances:

Eugene C. Rice, Esq., Paintsville, Kentucky,
for Contestant;
Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Respondent.

Before:

Judge Koutras

This proceeding was one of eight cases scheduled for
hearing in Paintsville? Kentucky, during the hearing term
September 22-23v 19870 When the case was called, contestant 1 s
counsel advised me that the contestant no longer wished to
pursue its contest, and requested that it be permitted to withdraw its contest. The request was granted, and this case IS
DISMISSEDo

k-K!~
Administrative Law Judge

1755

Distribution:
Eugene c. Rice, Esq., 232 Second Street, Paintsville, KY 41240
(Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Sui~e B-201, Nashville, TN
37215 (Certified Mail)
David O. Williamson .and Gregory Lyons, Esqs., Gardner, Moss &
Rocovich, P.C., Suite 900, 213 S. Jefferson Street, P.O.
Box 13606, Roanoke, VA 24035 (Certified Mail)
S. Howes Johnson, Esq., Johnson & Johnson & Phillips, P.O.
Box 470, Paintsville, KY 41240 (Certified Mail)

/fb

1755

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

OCT 15 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 85-19
A.C. No. 05-00301-03551

:

v.

Dutch Creek No. 1 Mine

MID-CONTINENT RESOURCES, INC.,:
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Lasher

This matter was initiated by the filing of a proposal for
penalty by the Secretary of Labor under the authority of Section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c., Section 801 et seq., (1982) (herein the Act). Subsequent
to the hearing the presiding administrative law judge, John A.
Carlsonu passed away and this matter has been assigned to me for
decisiono
Petitioner originally sought assessment of a penalty ($345)
for an alleged violation of 30 C.F.R. § 75.1704 which is described in the subject Citation ~o. 2212848 (issued at 1725 hours on
June 20u 1984u by Inspector Louis Villegos) as follows:
'The designated return escapeway from the 102 longwall
section was not maintained to insure passage at all times
due to the following conditions being present. At a
location 450 feet outby the 101 Longwall face, floor
material had been pushed up to within 4 feet of the roof
forming a bank and a impoundment of water and rock up to
15 inches deep, 6 feet wide and 75 feet in length. No one
was observed in the area to correct the condition. Men
were at work at the Longwall face."
0

1757

The alleged violation was designated "Significant and Substantial" on the face of the Citation.
The subject regulation, § 75.1704, pertaining to "Escapeways" provides:
"Except as provided in §§ 75.1705 and 75.1706, at least two
separate and distinct travelable passageways which are
maintained to insure passage at all times of any person,
including disabled persons, and which are to be designated
as escapeways, at least one of which is ventilated with
intake air, shall be provided from each working section
continuous to the surface escape drift opening, or continuous to the escape shaft or slope facilities to the
surface, as appropriate, and shall be maintained in safe
condition and properly marked. Mine openings shall be adequately protected to prevent the entrance into the underground area of the mine of surface fires, fumes, smoke,
and floodwater.
Escape facilities approved by the Secretary or his authorized representative, properly maintained
and frequently tested, shall be present at or in each
escape shaft or slope to allow all persons, including disabled persons, to escape quickly to the surface in the
event of an emergency."
Following the issuance of the Section 104(a) Citation on
June 20, 1984, Inspector Villegos, by extension dated July 5,
1984, extended the abatement time to July 11, 1984, with the
following justification for his action:
"Some progress has been made in the clean-up of the 102
longwall section returno At this time the 102 longwall
section is broke down for repairso This would allow ample
time to clean up the escapeway.•
On July 11, 1984, the Inspector again extended abatement
time- to July 20, 1984~ with this justification:
01

Evidence of work
an additional 100
tinuous miner has
time, the work by
This extension is

down in the return escapeway shows that
feet of grading has been done. A conbeen placed to do the grading. At this
this machine should go at a faster pace.
based on this accomplishment."

On July 25, 1984, citing a "Safety" violation of 30 C.F.R.

§ 75.1704 and under the authority of Section 104Cb) of the Act,
Supervisory Inspector Lee H. Smith issued Withdrawal Order No.
2336041 and described the "Condition or Practice" thereon as
follows:

1758

"The designated return air escapeway from the 102 longwall
active working section is still not being maintained to
insure passage at all times of any person, including disabled persons. Citation No. 2212848 was issued on 06-20-84
because of this condition. This Citation has been extended
twice and at this time travel through the affected area is
extremely difficult. Passage of a disabled person or one
being carried on a stretcher cannot be assured. l;
(emphasis added)
I note here that inadequate "maintenance" would appear to be
a "practice" and that obstructed passage would be a "condition".
Five days later, on July 30, 1984, the Withdrawal Order was
terminated by the Inspector on this basis: "The return escapeway
from the 102 longwall working section has been graQed out to a
height of at least 6 feet and a width of 8 feet."
Contentions of the Parties
Following completion of the evidentiary record, counsel for
the parties presented oral argument in lieu of briefs.
Respondent contends that the specific obstruction described
in Citation No. 2212848 was separate and apart from that
described in the Section 104Cb) Order of July 25 and that the
Order was improperly issued on the basis of its failing to abate
the original obstructive condition. Respondent concedes the
occurrence of the violation charged in the Citation but contends
that such violation was not "significant and substantial". The
11
significant and substantial" issue, however, was not the subject
particular focus during the hearingo
Petitioner contends that the existence of the violative
condition on June 20, 1984, described in Citation No. 2212848
was admitted by Respondent (T. 274) and that the "Failure to
Abate" Withdrawal Order was appropriately issued since the
escapeway in question was obstructed on July 25 even though the
obstruction may have been a separate condition in a different
location. Alternately, Petitioner argues that if the 104(b)
order is not upheld 0 the violation described therein .occurred and
should constitute a second violation of the escapeway standard
1/ Line 13 of the standard form employed for the Withdrawal
Order-wherein the "Area or Equipment" involved which is to be
withdrawn from is to be described- was left blank. To correct
this, on August 1, 1984, a modification of the Order was issued
stating: 11 0rder No. 2336041 is hereby modified to indicate the
area that was closed as the 102 longwall active working section."

1759

(T. 274-275), calling for modification of the Order to a 104(a)
Citation. ~/
Preliminary Findings
On June 20, 1984, coal mine Inspector Louis Villegos, during
an accelerated inspection authorized by section 103Ci) of the Act
where mines liberate excessive quantities of methane, inspected
the designated return air escapeway from the 102 longwall active
working section of the Respondent's Dutch Creek No. 1 Mine CT.
34, 41, 42).
Inspector Villegos was the primary inspector
conducting such inspections at the mine CT. 42).
·
At all material times the mine operated three shifts per day
(two production and one maintenance) seven days a week CT. 73).
At all material times Respondent employed a longwall mining
system at the subject mine which had two entries-an intake and a
return entry.
There were two escapeways from the 102 longwall active
working section. The primary escapeway was along an intake
entry, i.e. a material road going into the section CT. 172-173}.
The second escapeway was a return air course for the longwall CT.
47) which the Inspector described as follows: "Where the air goes
up the face and comes out of the return, that is a designated
return escapeway out of this mine." (Tr. 42).
On June 20, 1984, the Inspector walked the return entry and
observed a darn which had been built up by equipment grading which
was impounding water at a point approximately 450 feet from the
face (T. 43-44, 92-93, 100-101). The width of the return entry
this area was 6 feet (Tr. 43-44). The irnpoundment was 15
inches highu composed of rock and coalu and extended from rib to
rib (T. 44-45)0 The distance from the top of the impoundment
itself to the ceiling was 4 feet and the impoundrnent was 75 feet
in length in addition to being 6 feet wide (T. 45-46, 97, 189).

2/

Although there was considerable discussion on the record

~oncerning whether the original Citation was "merged" into the
subsequent Section 104(b) Withdrawal Order, I am unaware of such

a legal doctrine and reject this notion to the extent that the

identity and viability of the 104(a) Citation would be nullified.
Both the Citation and Withdrawal Order are integral documentary
components of a continuing mine safety enforcement process and
the fact that but one penalty is assessed even though there are
two enforcement papers seems only to reflect the impact of the
104(b) Withdrawal Order on the penalty assessment determination
insofar as it directly bears on one of the six mandatory
assessment criteria provided in Section llO(i) of the Act, i.e.,
"the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation."

1760

The water contained within the impoundment was 3 to 6 inches from
the top of the impoundment (T. 46) and covered the entire width
of the entry CT. 98).
The hazard envisaged by the Inspector which was created by
this condition was that if a fire occurred anywhere in the
section, most of the smoke CT. 47, 91, 99, 112) would exit out of
the return escapeway, creating this problem:
•••
with smoke present in that return air course, the
smoke does have a tendency to hang to the top. If a
person was walking out of there and you would -- more or
less, would want to get out of the smoke if you were
walking in it. You would want to get your head out of
the smoke so you would have a tendency to lower your head.
As you would come out of there, maybe, it would get to a
point that you would be coming out of there on your hands
and knees. With this obstruction in there, you would not
know what was behind it. So, if you wanted to crawl over
it, how do you know by going over it that the back end is
clear? CT. 47-48).
11

xxxx

xxxx

xxxx

xxxx

xx xx

"He would be faced with
when he would get to the impoundment, he couldn't see any further.
If he came on
this impoundment, how would he know that past the impoundment it was clear? Now, if there was no impoundment
in there, then, he could see ahead of him." CT. 48-49).

xxxx

xxxx

xxxx

xxxx

xx xx

"I believe his first reaction would be panic."

(T. 49).

The Inspector also pointed out that the location of a fire
would dictate whether miners would utilize the primary (intake)
escapeway or the subject return escapeway (T. 103).
Other hazards contemplated by the Inspector necessitating
use of the subject escapeway would be roof falls and failure of
the pack wall CT. 112-113).
The likelihood of a fire or other hazard occurring was not
ascertained. Inspector Villegas had never seen a fire in the
subject mine in 14 years (T. 102, 104). There was one explosion,
however, which resulted in 15 fatalities not attributable to an
escapeways problem (105-107, 110).
The subject Citation was issued at 1725 hours on June 20,
1984; the time for abatement was set for 2100 hours on the same
date by Inspector Villegas after Brian Savage, the foreman,
agreed to such time. The Inspector's return visit was on July 5,
1984 at which time, according to the Inspector the escapeway had

1761

not been cleared of obstacles and that such were the "same
objects" that he "had observed on the first one" CT. 53). ~/
Allyn Davis, mine superintendent, advised the Inspector that they
"were working on the problem" in explanation as to why abatement
had not taken place CT. 54). Inspector Villegos sympathized with
mine management's problem in achieving abatement because there
existed a continuing and re-occurring "heaving problem" (T.
54-55, 57, 101) and abatement time was extended to July 11, 1984
at 8:00 a.m. CT. 56). On July 11, 1984, the abatement period was
again extended to July 20, 1984 at 8:00 a.m. On this date, July
11, 1984, the same impoundment observed on June 20, 1984, was
still in existence CT. 93, 111-112) and the Inspector noted that
the mine operator had equipment working "right by this area" and
were working "up to it." CT. 94).
Inspector Villegos was not in the area of the subject return
escapeway during the interim periods between the issuance of the
original Citation and the 2 extensions, i.e., between June 20 and
July 5, between July 5 and July 11, and between July 11 and July
20 or July 25, on which latter date the Section 104(b) Withdrawal
Order was issued by another Inspector (T. 95-96). Whether the
original (June 20) impoundment was abated-and whether the entire
escapeway ever came into compliance - during the 2-week period
July 11-July 25 was not shown in the record (T. 155).
The Section 104(b) Withdrawal Order was issued during an
inspection on July 25, 1984, by Supervisory Inspector Lee H.
Smith after he observed another different impoundment CT. 123,
140, 154, 155, 165, 169) in the same escapeway.
He described the
condition as follows:
"From the track slope in to where the water accumulation
and mud accumulation was, the escapeway was in good
condition up to that area that was under citation. From
the water accumulation and mud accumulation in-by to
within approximately 100 to 150 feet of the face, the
heaving problem was very evident. The mine floor was within four feet of the mine roof. The area immediately out-by
where they were grading contained water and mud resembling
thick soup that was very hard to negotiate. The area where
the grading had stopped, referred to earlier as an impoundment v the area was very small. The ventilating air current
had picked up a considerable amount of speed. People
traveling this area were -- if there was a person in-by or

3/ A close reading of this segment of the Inspector's testimony
reveals that such is ambiguous as to whether the obstacle
observed on July 5 was the same impoundment cited on June 20 CT.
53}. However, on cross-examination, the Inspector made clear
that the impoundment he observed on June 20, 1984 when he issued
the Citation was still in existence when he issued the first and
second extensions of abatement time on July 5 and July 11, 1984
respectively CT. 93, 111-112).

1762

any amount of dust which was coming off the mine roof or
off any portion of that entry would result in a type of
stinging action with the dust particles and the coal
particles and rock particles would hit a person. It was
very low."
(T. 119).
Prior to July 25, 1984, it had been "some time" since
Inspector Smith had been in the 102 longwall return area (T. 141)
and he was not familiar with conditions in the area between June
20 and July 25, 1984 CT. 150).
Inspector Smith indicated that the impoundrnent area he
observed was approximately 50-70 feet in length by 6 to 8 feet in
width; that water of a depth of approximately 12 inches had
accumulated in the impoundment for a distance of at least 20
feet; that the ungraded mine floor in the area had come within 4
feet of the ceiling (T. 120-122); and that the water would tend
to gravitate inby toward the face CT. 147).
Inspector Smith felt that the grading process was possibly
causing the impoundment of water, i.e. the "removal of material
from the mine floor created a backstop against which the water
could not continue its normal flow into the tail gate area of the
102 longwall" (T. 128)0 4; The area described in the Withdrawal
Order was closer to the face than the area described by Inspector
Villegos in the Citation {T. 123; Ex. R-1>. After determining
that the escapeway in question was not "suitable according to
1704", the decision to issue the Withdrawal order was made "to
insure that the grading process would be completed in a reasonable amount of time." (T. 123)~
The Inspector testified that the "heaving" problem- stressed
by Respondent as one of several problems which made maintenance

of the escapeway difficult- was "an ongoing condition" in the
area and that while mine crews were in fact engaged in grading
the area, after two extensions it was felt that the area "was not
being cleaned fast enough" and that the hazard, while located in
a different place than that observed by Inspector Villegas, still
existed CT. 151)0
Inspector Smith described the hazard posed by the violative
condition he observed as follows:
"Well, I do not believe that an injured man, particularly
an injured man that would need to be transported on a
stretcher, would have an easy time while being transported
through this area. I know it would be extremely difficult.

ii

On cross examination, however, the Inspector attributed the
impoundment to the continuous miner CT. 146).

1763

It was difficult for me to travel through this area and I
can imagine how hard it would be to have an injured man on
a stretcher going through it or, perhaps, a person with a
broken leg or anyibone fracture where a jarring movement
is quite painful. The stop point of the grading would be
a drop of approximately two and a half to three, three and
a half feet into a muddy mess."
CT. 129).
The Inspector also felt that while "a desperate man could
probably make it through" the condition of the escapeway when he
observed it would hamper or slow the escape of miners attempting
to use it (T. 129). Based on this unrebutted testimony, it is
concluded that this condition also constituted a failure to
maintain the escapeway in a "safe" condition and thus a violation
of the regulation.
Following the issuance of the Withdrawal Order the
Respondent abated the violative condition in approximately 5 days
(T. 147-148).
Of considerable significance to the ultimate determination
of the abatement question is Inspector's Smith's testimony with
respect to the condition of the impoundment area cited on June 20
by Inspector Villegas when he (Smith) observed such area on July
25. After first testifying that the area described in the June
20 Citation had not been "completely cleaned up" (T. 154) and
after ambivalent responses to questions of the trial judge, the
witness then gave the following testimony:

Q. All right. Let's address this from a somewhat
different direction. My understanding was that Mr. Villegas
indicated that the length of the entry way affected when
he was there the first time and -- actuallyv the second and
the third time was about 75 feet.
Is that right? Is that
the way you recall his testimony?
A.

Yes, sir.

Qo
Okayo Nowv can you tell me with a reasonable degree of
certainty when you were there on the 25th how much of that
75 feet had been effectively cleared up and how much hadn 1 t
or don~t you really know?

Ao Nov sirf I cannot say that with a reacionable degree
of certainty.
Q.

Can you assure me that all 75 feet hadn't been cleared

up?
A.

No, sir.
(T.

155) •

Respondent's Mine Superintendent, Allyn Davis, testified at
length concerning various inherent difficulties encountered in

1764

the mine in maintaining the escapeway (T. 169-201) and indicated
that what Inspector Villegas observed on June 20 was "the pile of
muck that had been rooted up by" a Deisel EIMCO machine (similar
to a front-end loader) on the previous shift the night before.
Mr. Davis attributed the impoundment of water to the pile of muck
CT. 175, 176, 188, 190) and essentially agreed with Inspector
Villegas' description of it CT. 190). Mr. Davis opined without
elaboration that the area in question was "passable" (T.
190-191).
At the time of the issuance of the Citation, Respondent had
two EIMCO machines engaged in grading the entire escapeway 2
shifts per day to keep the subject escapeway clear CT. 201-204,
211) one of which machines worked in the escapeway exclusively
(T. 204). After the Citation was issued, no machines or
personnel were added, nor were any significant changes made in
the grading program to achieve abatement CT. 204-205, 217, 221)
nor were any such changes made after issuance of the Withdrawal
Order on July 25, 1984 CT. 205-206}. Issuance of the Withdrawal
Order stopped production CT. 205). Mr. Davis pointed out that
two machines were the maximum which could be employed CT. 211).
Mr. Davis explained why the Citation was not abated during a
period of approximately 30 days but that the Order was abated in
five days as follows:
Well, when we got the original citation, the -- at that
point in time, I knew that the job that was ahead of me
was to grade the entire tail gate not just that particular
area in question. Because that area, you know -- that
would just propagate itself. If I cleaned that area up,
thenv we would find the same thing ahead.
So, we started
grading from both directions and while the original area
was being extended there was a lot of work being done from
the in-by end by the face coming back towards that area.
That was much more productive. And, in fact, we did grade
most of the tail gate out coming from that direction and
we had very little luck driving from the out-by end in
because of the watero So, at the point in time when the
order was issued, there was, in fact, very little tail gate
left to be graded out. And, then, the job was finished.
(Emphasis supplied} CT. 208)
ULTIMATE FINDINGS AND CONCLUSIONS
Ao

Validity of the Withdrawal Order.

The question arises whether, following the issuance of the
initial Citation on June 20, 1984, it was established that the
secondary escapeway in question did not come into compliance with
the regulation, § 75.1704, prior to the occurrence of the
conditions leading to the issuance of the 104(b) Order on July
25, 1984. This would appear to be a prerequisite element of
proof to Petitioner's "failure to abate" contention because the
second violation occurred in a different area of the escapeway.

1765

Broken down, the elements of the cited regulation itself are
that there (1) "at all times" (2) "be at least two separate and
distinct travelable passageways" which (3} "are maintained to
insure passage ••• of any person, including disabled persons"
which (4) "are to be designated as escapeways" ••• and (5) "shall
be maintained in safe condition" •••
Did the dynamics of the type of mining conducted here create
a continuous violation, that is, one obstruction of the escapeway
always overlapping the other? The validity of the "failure to
abate" Order would seem to hinge on an affirmative answer to this
question. By way of illustration, if at Point A of one of a
mine's two escapeways a violative obstruction occurs and
§ 75.1704 violation is cited, and before it is removed, another
obstruction occurs at Point B, and after A is cleaned up (abated)
but before B is cleaned up, a third obstruction occurs at Point
c, it cannot be said that abatement of the original violation at
Point A occurred, since at no time were there two travelable
passageways in the mine which were maintained in safe condition.
In various applications, such as the interpretation of
whether an imminent danger exists, or whether a violation is
"significant and substantial", the Commission has analyzed a
particular mining condition or practice in the perspective of
"continued mining operations". If, as a result of the dynamics
of continued mining or any other reason, the subject escapeway
ter the issuance of the 104(a) Citation on June 20, 1984, never
came back into compliance with the regulation so as to serve as
an escapeway, abatement did not occur. Again, when one of the
two designated escapeways is obstructed to the point of
non-compliance with the subject regulation (a) at one place or
another, or Cb) due to one condition or another, or (c) due to a
particular mining practice or another, if it fails continuously
to serve as a distinct travelable passageway, etc., following the
issuance of a Citation and until a "failure to abate" withdrawal
order is issued, the issuance of such order should be found appropriate under Section 104(b) of the Act. ~/
~/

Section 104(b)

provides~

"(b) If, upon any follow-up inspection of a coal or other
mine, an authorized representative of the Secretary finds
(1) that a violation described in a citation issued pursuant
to subsection (a) has not been totally abated within the
period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the
abatement should not be further extended, he shall determine
the extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such mine
or his agent to immediately cause all persons, except those
persons referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that
such violation has been abated.
1766

A violation occurs when one <or both} of the designated
escapeways fails to adequately function as such.
The testimony of Petitioner's witnesses was reliable and
does establish that there were two separate violations of 30
C.F.R. § 75.1704 one on June 20 and one on July 25, 1984. Other
than a bald opinion of one of its witnesses to the contrary (T.
191) Respondent makes no contention that such was not the case.
Nevertheless, the Petitioner, in these circumstances where the
situs of the second violation was different than the first, did
not establish Cl) when the second violation commenced or (2} that
the first violation was not abated prior to the occurrence of the
second, that is, there was no showing that the obstructive condition constituting the first violation was in existence when the
second violation was detected. The record reveals that
continuous grading efforts were carried on after the Citation's
second extension was issued on July 11, 1984. There was no
showing that the secondary (return) escapeway was continuously
obstructed in one location or another. Even though it is clear
that the essence of the standard is the having of two escapewaysas contrasted to a focus on the presence of a particular
condition, obstruction, or impediment to passage at a given place
in the escapewayit has not been established that the escapeway did not come into compliance after the first violation and
before the second (a 14-day period), a prerequisite to the
conclusion that the mine operator did not abate the first
violation.

6;

I thus find insufficient evidence of Petitioner's "failure
to abate" allegation, not simply because the second (July 25)
violation occurred in a different area, but because there (a) is
no reliable evidence as to the condition of the original (June
20) violation situs after July 11, coupled with the fact (b) that
there is insufficient evidentiary basis to draw the inference
that the return escapeway, for one reason or another, at one
location or another, was not cleaned up, or maintained adequately
during the period July 11 - July 25 to constitute an abatement at
some point in time of the original violationo
Accordingly 1 it is
concluded that the 104(b) Withdrawal Order was improperly issued.
However, since the Order itself specifically cites a violation of
30 C.F.R. § 75.1704, and the evidence establishes the occurrence
of such a violation, modification of the Order to a Section
104(a) Citation is called for within the authority of Section
105(d) of the ~ct and a separate penalty assessment therefor will
be made.

6/ An obstruction, in and of itself, is not a violation of the
subject standard.

1767

B. Significant and Substantial
With regard to the nsignif icant and substantial" finding of
the Inspector on the face of Citation No. 2212848,
there was
no specific attention placed on this subject either-during the
evidentiary hearing or in oral argument. Respondent did
challenge the "significant and substantial" designation (T. 5).

7;

A "significant and substantial" violation is described in
section 104Cd)(l) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard[.]" 30
u.s.c. § 814(d)(l). The Commission first interpreted this
statutory language in Cement Division, National Gypsum Co., 3
FMSHRC 822 (April 1981}:
[A] violation is of such nature as could significantly
and substantially contribute to the cause and effect
of a mine safety or health hazard, if based upon the
particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably
serious nature.
3 FMSHRC at 825.
In Mathies Coal Co., 6 FMSHRC 1 (January 1984),
the Commission reaffirmed the analytical approach set forth in
National Gypsum, and stated:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove: Cl)
the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is 11 a measure of
danger to safety -- contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious
natureo
6 FMSHRC at 3-4 (footnote omitted).

Accord, Consolidation Coal
The Commission has
explained further that the third element of the Mathies formula
'~requires that the Secretary establish a reasonable likelihood
that the hazard contributed to will result in an event in which
there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(August 1984).

Co.v 6 FMSHRC 34, 37 (January 1984).

7/ No "significant and substantial" designation was made on the
Withdrawal Order.

1768

Suffice it to say that the record does not support a finding
that there existed a r~asonable likelihood that the hazards
described which were contributed to by the violation would result
in an event in which there is an injury, even under the most
liberal construction of the phrase "reasonable likelihood."

c. Penalty Assessment
The Respondent is an underground coal mine operator with a
history of 231 prior violations during the 2-year period
preceding the issuance of the first Citation No. 2212848 on June
20, 1984 (Ex. P-7). Respondent previously had been cited for
obstructed escapeways which were described as a "recurring
problem" (T. 57-60). Both violations were obvious CT. 43-47,
122-129) and were the result of the nature of mining being
conducted in the context of numerous difficulties encountered by
Respondent. 8/ It is concluded that the first violation (June
20) resulted-from ordinary negligence. However, the second violation occurred more than a month after the first and Respondent
should have been acutely aware of the hazards posed by the
violation and a high degree of negligence is attributed to it.
Failure to provide two safe escapeways by its very nature is a
serious infraction and both violations are found to be moderately
serious in view of the gravity of the potential injuries posed by
the hazards.
In mitigation, Respondent contends, in addition to its
showing of considerable difficulty in keeping the escapeway
clear, that it suffered a loss as a result of the inappropriate
issuance of the Withdrawal Order which closed down production for
5 days. The vitiation of the "significant and substantial"
charge
Citation Nao 2212848 must
so be considered. These
factors in mitigation serve to reduce the level of penalties
otherwise called for.
Based on the foregoing considerations, a
penalty of $175.00 for each violation is deemed appropriate and
is assessed.

8/ was compliance with the 2 escapeway standard shown to be impossible? Respondent presented at length a variety of geologic,
equipment, spatialv and time problems which it maintained posed
difficulties in obtaining compliance, i.e., keeping the secondary
return escapeway adequately cleared while production was ongoing.
Nevertheless, the second impoundment was abated in 5 days after
the Withdrawal Order issued and Inspector Villegos' testimony CT.
104) that the first violation could have been abated in 6 or 7
days went unrebutted. I thus conclude that compliance with the
subject regulation was not impossible. See Sewell Coal Co., 3
FMSHRC 1380 (1981).

1769

ORDER
(1) Citation No. 2212848 is modified to delete the
"Significant and Substantial" designation thereon, is otherwise
affirmed, and a penalty of $175 is assessed therefor.
(2) Withdrawal Order No. 2336041 issued pursuant to Section
104(b) of the Act is modified pursuant to Section 105(d) of the
Act to a Section 104{a) Citation and a penalty of $175 is
assessed therefor.
(3) On or before 30 days from the date of this decision
Respondent shall pay to the Secretary of Labor the penalties
above assessed in the total sum of $350.00.

r:fift'~~-dt ~If,
Michael A. Lasher, f;.

Administrative Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790,
Glenwood Springs, CO 81602 (Certified Mail)

/bls

1770

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

October 15, 1987

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

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 87-37
A. C. No. 36-05018-03629

v•

Docket No. PENN 87-38
No. 36-05018-03630

U. S. STEEL MINING COMPANY,

A. C.

I NC. ,

Respondent

Docket No. PENN 87-127
A. C. No. 36-05018-03646
Docket No. PENN 87-157
A. C. No. 36-05018-03648

Cumberland Mine
DECISION
Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Billy M. Tennant, Esq., U.S. Steel Mining
Company, Inc., Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Merlin

These cases are petitions for the assessment of civil
penalties filed under the Federal Mine Safety and Health Act
30 U.S.C. § 801 et seq., by the Secretary of Labor against U. S.
Steel Mining Compan:V:-Tnc.
The parties agreed that the issues in these cases are identical. Accordingly, they proposed to try only Docket No.
PENN 87-37 and have the decision in that case determine the result in the others. I accepted this proposal and consolidated
the cases for hearing and decision (Tr.4-6).
The parties agreed to the following stipulations:
(1)

mine;

the operator is the owner and operator of the subject

(2) the operator and the mine are subject to the jurisdiction of the Feder~l Mine Safety and Health Act of 1977;

1771

(3) the Administrative Law Judge has jurisdiction over
these cases;
(4) the inspector who issued the subject citations was a
duly authorized representative of the Secretary;
(5) true and correct copies of the subject citations were
properly served upon the operator;
(6) copies of the subject citations and determinations are
authentic and may be admitted into evidence for the purpose of
establishing their issuance, but not for the purpose of establishing the truthfulness or relevance of any statements asserted
therein;
(7) imposition of a penalty will not affect the operator's
ability to continue in business;
(8)

the alleged violation was abated in good faith;

(9)

the operator's history of prior violations is average;

(10)

the operator's size is large.
PENN 87-37

The subject citation, dated September 18, 1986, sets forth
the condition or practice as follows:
As observed on September 18, 1986 at 9:30
a.m. the trailing cable receptacles were not
properly identified or labeled so as to
identify the electrical equipment plugged
into the power center receptacles for the
feeder, roof drill, welder, shuttle car no.
2, fan no. 2, scoop charger, ram car no. 2.
Charger and the continuous mining machine in
the 8 Butt East 009-0.
Section 306(b) of the Act, 30 IJ.S.C. § 866(b), and section
75.601 of the mandatory standards, 30 C.F.R. § 75.601, provide:
Short circuit protection for trailing cables
shall be provided by an automatic circuit
breaker or other no less effective device
approved by the Secretary of adequate
current-interrupting capacity in each underground conductor. Disconnecting devices uses
to disconnect power from trailing cables
shall be plainly marked and identified and
such devices shall be equipped or designed in
such manner that it can be determined by

1772

visual observation that the power is
disconnected.
The MSHA Underground Manual for Inspectors dated March 9,
1978, provides in pertinent part with respect to section 75.601:
A visual means of disconnecting power from
trailing cables shall be provided so that a
miner can readily determine whether the cable
is de-energized. Enclosed circuit breakers
are not acceptable as visible evidence that
the power is disconnected. Plugs and receptacles located at the circuit breaker are
acceptable as visible means of disconnecting
the power. These devices shall be plainly
marked. For example, the loading machine
cable disconnecting device shall be plainly
marked (LOADER), the shuttle car cable disconnecting device shall be plainly marked
(S.C. No. 1 or S. C. No. 2) or the disconnecting devices shall be readily
identifiable by other equally effective
means.
The MSHA Inspector's Electrical Manual dated June 1, 1983
sets forth the following regarding section 75.601:
A visible means of disconnecting power from
each trailing cable shall be provided so that
a miner can readily determine whether the
cable is de-energized. Enclosed circuit
breakers are not acceptable as visual
evidence that the power is disconnected.
Plugs and receptacles located at the circuit
breaker and trolley nips are acceptable as
visual means of disconnecting the power.
These devices shall be plainly marked for
identification to lessen the chance of
energizing a cable while repairs are being
made on the cable. For example, the loading
machine cable plug shall be plainly marked
11
LO ADER, 11 the sh ut t 1 e car cab l e p 1 ug sh al 1 be
pl a i n l y marked 11 S . C• N0. 1 11 or 11 S . C• NO. 2 • 11
The proper use of disconnecting devices has a long history
at the Cumberland Mine. As set forth in an MSHA Investigation
Report and as described by an MSHA electrical supervisor who had
partic.ipated in the investigation, a fatality occurred in 1979
when two shuttle cars were being repaired at the same time
(Government Exhibit 4, Tr. 144, 152-159, 191). A mechanic working on the first car was electrocuted when a mechanic who had
finished working on the second car mixed up the cars 1 trailing
1773

cables and mistakenly plugged in the cable of the first car,
electrifying it. The teg and lock out which had originally been
placed on the first car were subsequently removed by mistake with
the result that the first car could be energized while it was
still being repaired. The trailing cable plugs of the shuttle
cars were not identified to correspond with the receptacles and
circuit breakers at the load center. The receptacles and circuit
breakers were marked shuttle car ~o. 1 and shuttle car No. 2,
while the trailing cable plugs were mar~ed shuttle car No. 105
and shuttle car No. 106. In addition, the trailing cable marked
as No. 106 was attached to a shuttle car marked No. 110. Finally, in order to energize the first car, the mechanic manually
overrode the circuit breakers. As the MSHA electrical supervisor
explained, the fatality had multiple causes (Tr. 191). One of
them was the method of labelling.
Tn 1982, a citation was issued at Cumberland for a violation
of§ 75.601 due to unmarked trailing cable plugs. The Commission
affirmed the citation and found the violation was significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 1834
(1984).
MSHA's electrical supervisor testified that under the mandatory standards MSHA could require that the tag and receptacle,
but not the circuit breaker, be identified by reference to the
piece of equipment (Tr. 136-137, 167, 173-174, 191). The
witnesses agreed that at the Cumberland Mine from the 1979 fatality up to the end of 1986 trailing cable plugs, receptacles as
well as circuit breakers were identified in terms of the equipment (Tr. 136-137, 245-246). The system at Cumberland was not
followed at U. S. Steel 1 s Maple Creek Mine (Tr. 87). The
electrical supervisor stated that Maple Creek was an isolated
exception (Tr. 143). Both the supervisor and the MSHA electrical
specialist who also testified, asserted that the only approved
oolicy was the one where the plug and receptacle both were tagged
by specifying the equipment (Tr, 107, 139). In the latter part
of 1986 the system at Cumberland was changed so that only the
1 ab el on the plug referred to the equipment (Tr. 245-246, 256).
Accordingly, when the inspector visited the Cumberland Mine
o n S e p t em b e r 1 8 , 1 9 8 6 h e f o u n d t h a t t h e t r a i l i n g c a b l e p l ug s iv e r e
labelled with the name of the piece of equipment to which they
were attached but that the receptacles which were identified as
Circuit 1, 2, etc., were not so labelled. Circuit breakers were
identified in the same way as the receptacles (Joint Exhibit 1,
Tr. 17-18).
The Secretary's position is that the plug and the receptacle
constitute a disconnecting device, whereas the operator maintains
that only the plug is the disconnecting device. As the parties
point out in their briefs, the term 11 disconnecting device" is
neither defined in the Act nor in the regulations. After consideration of the matter, 1 accept the testimony of the MSHA

1774

electrical specialist that the plug and receptacle are one thing
(Tr. 107) and conclude that both together are a disconnecting
device. Only when one is separated from the other does a
disconnection occur. Therefore, they both together should be
viewed as a unit for purposes of the mandatory standard. The
operator•s brief refers to the testimony of its electrical
engineer that the reference to disconnecting device in 30 CCF.R.
§ 75.511 means plug because he would not lock out a receptacle
(Tr. 218). However, the engineer further noted that he would not
say that locking out a receptacle is never done and that he knew
manufacturers make provisions so a lock can be placed on a
receptacle (Tr. 218-219). Also, although the MSHA electrical
supervisor testified that disconnecting device as used in 30
C.F.R. § 75.903 is a plug, he further explained that § 75.903 and
its subpart, are not concerned with trailing cables and that
there is a difference (Tr. 175, 177).
The record demonstrates that the Secretary•s position regarding the labelling of plugs and receptacles measurably advances
the cause of safety as contemplated and required by the Act. I
find convincing the testimony of the MSHA electrical supervisor
that when a miner wants to energize or de-energize a piece of
equipment he does not look at the plug, but rather goes directly
to the circuit breaker he believes is being used for the equipment in question (Tr. 147-148). A hazard arises when unbeknownst
to him someone has changed the plug (Tr. 148). Thus, when
neither the circuit breaker nor the receptacle is identified in
·terms of the particular piece of equipment, the miner, merely
relying upon the fact that a certain circuit and breaker are
customarily used for a given item of equ{pment, would be in
danger if the plug were changed without his knowledge. The wrong
piece of equipment could be energized shocking a miner or there
could be a delay in de-energizing, thereby prolonging the time of
exposure to electrical shock (Tr. 29-30, 122).
These hazards are magnified when more than one piece of
equipment is being worked on or repaired at the same time. As
the MSHA electrical specialist explained, cables of machinery
around the load center resemble spaghetti, the way they are all
wrapped around each other so that it is difficult to distinguish
which cable is which (Tr. 115-116). Without a ready 1neans of
identification, a miner might energize the wrong trailing cable
leading to a piece of equipment still being worked on, thereby
causing an accident by shocking a miner (Tr. 116). The Commission has accepted evidence that it would not be unusual for
two shuttle cars on the same section to be down for repairs at
the same time~ U. S. Steel, supra, at 1838. And in this case
the operator•s electrical engineer admitted multiple equipment
breakdowns and shut-downs are customary (Tr. 239). I accept the
testimony of the MSHA electrical specialist that labelling the
plug and the receptacle in the same way, i. e., referring to the
equipment, sets up a pattern of behavior which individuals will
memorize through habit (Tr. 114).

1775

The view expressed by the operator's witnesses that the best
system would be one where the miner follows the trailing cable
back to the piece of equipment is unpersuasive (Tr. 240, 252).
The equipment could be a substantial distance away so that it
would take too much time where seconds count to avoid an electrical shock. In addition, it would be impractical to expect miners
to undertake such a course of conduct. I acknowledge the
operator 1 s arguments that MSHA's requirements mean less flexibility and convenience (Tr. 222-223, 247). But under the Act
safety consid~rations are paramount. Indeed, it is the very
broad flexibility and freedom inherent in the operator's approach
which create the hazards described herein.
Finally, I find particularly compelling the fact that the
Secretary's position in this case is the one he has espoused
since the law was enacted. The electrical supervisor testified
that disconnecting devices have always been identified to include
the plug and receptacle and the policy now is the same as it was
in 1979 (Tr. 138, 166-167). The 1978 and 1983 manuals provide
that plugs and receptacles are acceptable as visible means of
disconnecting power. I do not believe that the 1983 manual 1 s
reference just to plugs as examples of disconnects signifies any
cnange in policy. The 1983 examples are illustrative, not exclusive. The general language of the manuals, which identifies both
items as visible means of disconnecting power, represents MSHA 1 s
declared policy. Admittedly, the inspector's manual is not
binding upon the Commission. However, where, as here, the
manuals have fairly and rationally interpreted the mandatory
standard since its enactment, they are entitled to weight and
should be followedo See, Alabama B -Products, 4 FMSHRC 2128,
2132 (1982). Under sue c rcums ances e erence should be given
to the interpretation of the Secretary, as the official charged
with enforcement under the Act. Brock v. Cathedral Bluffs Shale
Oil Co., 796 F.2d 533 (0. C. Cir. 1986). Although there appears
o e some conflict on the matter, I accept the testimony of the
MSHA supervisor already set forth that although this policy was
not followed at U. S. Steel's Maple Creek Mine, that was an
isolated exception (Tr. 139). Com are (Tr. 211-214). Therefore,
this inconsistency in enforcemen
s not a basis for disapproving
MSHA's general position. Southern Ohio, 8 FMSHRC 1231 (1986).
Moreover, the MSHA supervisor es
e that MSHA is awaiting the
outcome of this case before any action is taken at Maple Creek
with regard to that mine's labelling system (Tr. 143). Under the
circumstances, I agree with the Solicitor that estoppel would not
be appropriate.
In light of the foregoing, I conclude that a violation of 30
C.F.R. § 75.601 occurred. It next must be determined whether
this violation was significant and substantial.

1776

The Commission has held that a violation is properly
designated significant and substantial if, based on the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature. Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission
explained:
In order to establish that a violation of
mandatory safety standard is signi Fi cant and
substantial under National Gypsum the
Secretary of Labor must prove: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety-hazard--that
is, a measure of danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
The Commission subsequently explained that the third element
of the Mathies.formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury 11 U.S. Steel Mining Co.,
6 FMSHRC 1834, (August 1984).
In the instant case, it is established that a violation
occurred, and that the violation contributed to a discrete safety
hazard~ Le., electrical shock (Tr, 29).
As already set forth,
the evidence of record indicates that multiple equipment
shut-downs during a shift are customary (Tr. 239) and that it is
difficult to distinguish between the different cables at the load
center (Tr. 115-116). Accordingly, I conclude it was reasonably
likely that the wrong piece of equipment would be energized or
that delay would occur in de-energizing the correct piece of
equipment which would cause serious injury to that miner. There
is no dispute that the resultant injury, which could be a bad
burn or a fatality, would be of a reasonably serious nature (Tr.
29 ) •

At the hearing and in its post hearing brief, the operator
argued that the most readily available and quickest means and of
de-energizing equipment is the 11 crash 11 button located at the load
center. The operator further asserts that the use of the crash
button in an emergency situation eliminates the hazard associated
with de-energizing equipment. This argument fails. First, when
a miner resorts to the crash button, the accident has already
occurred. The crash button does not address the hazard of
initially turning power on the wrong piece of equipment, but only
concerns de-energizing equipment (Tr. 95, 238). Second, in the
context of de-energization, the crash button is not the preferred

1777

method of de-energizing quickly. The accepted method is to open
the circuit breaker (Tr. 125-126). If the crash button is
utilized, the auxiliary fans would stop functioning which in turn
would kill the ventilation to the working place (Tr. 100). And
finally, the crash button controls the outby breaker that feeds
the power center. Once the crash button is thrown, power to the
section can be restored only by traveling to the outby breaker
and manually resetting it. The outby breaker generally is
located a substantial distance from the power center (Tr.
123-125).
In light of the foregoing and for purposes of section llO(i)
of the Act, 30 U.S.C. § 820(i), I conclude the violation was serious. In addition, I find the operator was guilty of ordinary
negligence. The operator was aware of MSHA requirements with
respect to disconnecting devices. The isolated exception at the
Maple Creek Mine did not relieve the operator of the
responsibility to comply with the MSHA policies well known to it.
The post hearing briefs of the parties which were very helpful, have been reviewed. To the extent they are inconsistent
with this decision, they are rejected.
As set forth above, the parties agree that the decision in
PENN 87-37 will control the other three dockets. The finding of
a violation and the conclusions regarding the statutory criteria
for PENN 87-37 are therefore, applicable to the other cases.
Accordingly, it is ORDERED that all the citations of the
subject cases are hereby affirmed.
It is further ORDERED that the following civil penalties are
assessed:
Docket No.
87-37
PENN 87-38
PENN 87-127
PENN 87-157

PENN

Citation No.
2678740
2681964
2687405
2687467

$200
$200
$200

It is ORDERED that the operator pay $800 within 30 days from
the date of this decision.

~--'~~~
\ ~

Paul Merlin
Chief Administrative Law Judge

1778

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Billy M. Tennant, Esq., General Attorney, Employee Relations, 600
Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)
Mr. Samuel L. Cortis, Safety Manager, U. S. Steel Mining Company,
Inc., 351 West Beau Street, Washington, PA 15301 (Certified
Mai 1 )
Michael H. Holland, Esq., UMWA, 900 15th Street, N.H.,
Washington, DC 20005 (Certified Mail)
I g1

1779

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

22041

OCT 2 0 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 86-142
A.C. No. 15-13469-03564

v.
Docket No. KENT 87-32
A.C. No. 15-13469-03575

GREEN RIVER COAL COMPANY,
INC.,
Respondent

Docket No. KENT 87-33
A.C. No. 15-13469-03579
Docket No. KENT 87-79
A.C. No. 15-13469-03588
Green River No. 9 Mine
DECISIONS

Appearances:

Mary Sue Ray, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner~
Flem Gordon, Esq., Gordon & Gordon, Owensboro,
Kentuckyr for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of
civil penalties filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977r 30 U.S.C. § 820(a), seeking civil penalty
assessments for 11 alleged violations of certain mandatory
safety standards found in Part 75, Title 30, Code of Federal
Regulations, and one alleged violation of the accident reporting requirements of 30 C.F.R. § 50.12.
The respondent filed timely answers and notices of contests challenging the alleged violations and MSHA's "special
assessments" which formed the basis for the proposed civil

1780

penalty assessments filed by the petitioner in these
proceedings.
The respondent's answers also included challenges to the
merits of a section 107(a) imminent danger order upon which
three violations in issue were based (KENT 86-142); the
merits of two section 107(a) imminent danger orders issued in
conjunction with four section 104(a) citations (KENT 87-79);
the merits of a section 104Cd)(l) order on which the petitioner's civil penalty proposal is based (KENT 87~32); and
the merits of a section 104(d)(l) Order No. 2216256, included
as part of the petitioner's proposals for assessment of civil
penalties.
These cases were scheduled for hearings on the merits in
Owensboro, Kentucky, during the hearing term September 1-3,
1987. In Docket No. KENT 86-142, the parties filed a pretrial
motion proposing a settlement disposition of the case pursuant
to Commission Rule 30, 29 C.F.R. § 2700.30. However, in view
of the failure by the parties to submit full information
regarding the six statutory civil penalty assessment criteria
found in section llOCi) of the Act, a dispositive ruling on
the motion was held in abeyance, and the parties were afforded
an opportunity to present the information on the record at the
hearings.
With regard to the remaining cases, when the dockets
were called for trial, respondent's counsel informed me that
upon further consultation with a representative of the respondent who was present in the courtroom, the respondent decided
not to go forward with the cases and decided to settle the
matters with the petitioner. The parties were
forded an
opportunity to present their arguments in support of their
settlement proposals on the record in each of the cases. The
violations, initial assessments, and the proposed settlement
amounts are as follows:
DOCKET NO. KENT 86-142
Citation No.
2214778
2214779
2214780

Date

30 C.F.R.
Section

04/16/86
04/16/86
04/16/86

75.400
75.1725
75.1722

1781

Assessment

Settlement

$ 700
$ 700
$ 400
$1,800

$ 700
$ 700
$ 400
$1,800

DOCKET NO. KENT 87-79
Citation No.
2216502
2216503
2216504
2216514

Date
10/21/86
10/21/86
10/21/86
11/17/86

30 C.F.R.
Section
75.301
75.308
75.403
75.316

Assessment

Settlement

$ 800
$ 800
$ 600
$ 600
$2,800

$ 500
$ 500
$ 500
$ 500
$2,000

Assessment

Settlement

$ 800

$ 800

Assessment

Settlement

$1,000
$ 100
$ 700
$ 600
$2,400

$1,000
$
50
$ 700
$ 600
$2,350

DOCKET NO. KENT 87-32
Order No.

Date

2216241

07/15/86

30 C.F.R.
Section
75.400

DOCKET NO. KENT 87-33
Citation/
Order No.

Date

2216247
2216814
2216816
2216256

07/28/86
08/02/86
08/02/86
08/05/86

30 C.F.R.
Section
75.400
50.12
75.400
75.200
Issues

The issues presented in these proceedings are whether
the respondent violated the cited mandatory safety standards
as stated in the contested citations and orders, and if so,
the appropriate civil penalty assessments which should be
assessed for those violations based on the criteria found in
section llO(i) 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 ~-

u.s.c. § 820Ci).

2.

Section llO(i) of the 1977 Act, 30

3.

Commission Rules, 20 C.F.R. § 2700.1 et ~·

1782

Procedural Rulings
The parties were advised that the issues raised as part
of the respondent's answers with respect to the merits of the
previously mentioned section 107(a) imminent danger orders,
and the "unwarrantable failure" section 104(d)(l) orders were
not viable issues in these civil penalty proceedings. The
parties acknowledged their understanding of my bench ruling,
and no objections or exceptions were noted.
With regard to the respondent's challenge to MSHA's
"special assessment" civil penalty procedures found in
Part 100, Title 30, Code of Federal Regulations, the parties
were advised that MSHA's Part 100 civil penalty procedures
are not controlling in these de novo civil penalty proceedings, and that any civil penalty assessments levied by me
will be on the basis of the record made in these cases,
including any credible testimony or evidence presented with
respect to the alleged violations, and the information and
evidence presented with respect to the six statutory civil
penalty assessment criteria set forth in section llO(i) of
the Act.
Preliminary Matter
With regard to Dockets KENT 87-32 and KENT 87-33, the
parties were advised that according to a memorandum dated
August 19, 1987, from MSHA's Civil Penalty Compliance Office,
to the Commission's Docket Office, MSHA's records reflect
that it has received payment from the respondent for the
proposed civil penalty assessments made in these two cases.
Upon consultation with the respondent 1 s assistant Safety
Director, Grover Fishbeck, who was present at counsel table,
respondent's counsel confirmed that the respondent had in
fact tendered payment to MSHA for the civil penalties in
Dockets KENT 87-32 and KENT 87-33. Counsel asserted that he
was unaware of the payments 1 that they were made in error,
and that the mistaken payments should not be construed as a
waiver of the respondent's rights and intentions to contest
the violations in question.
Stipulations
With regard to Dockets KENT 87-32, KENT 87-33, and
KENT 87-79, the parties submitted the following written relevant stipulations:

1783

1. For the calendar year 1986, respondent
produced 1.7 million tons of coal.
2. Respondent currently has 384
employees.
3. The proposed civil penalty assessments
for the violations in question will not
seriously affect the respondent's ability to
continue in business.
4. The respondent acted in good faitn in
correcting or abating all of the alleged violative conditions.
The parties also agreed that notwithstanding the settlements which have been approved in all of the cases, all of
the citations and orders which are the subject of these
proceedings will stand as issued, including the inspector's
"S&S", negligence, and gravity findings.
They also agreed
that I may properly consider the information concerning the
respondent's history of prior violations as reflected in the
pleadings filed by MSHA, namely the information which appears
on MSHA's Proposed Assessment Form 100-179, with regard to
the number of prior assessed violations and the number of
inspection days during which those violations were issued.
Discussion
DOCKET NO. KENT 86-142
This case concerns three section l04(a) "significant and
substantial" (S&S) citations issued by MSHA Inspector
George W. Siria on April 16, 1986. The citations relate to
the accumulation of loose coal and coal dust, inoperative
conveyor belt rollers, and an inadequately guarded tail
roller on the slope belt conveyor of the subject mine.
In
particular, the inspector cited violations of mandatory
safety standards 30 c.F.R. § 75.400, 75.1725 and 75.1722.
He
also found that the cited conditions, taken collectively,
constituted an imminent danger, and he issued a section
107(a) order on April 16, 1986, withdrawing miner's from the
cited slope belt areas.

By motion received August 10, 1987v respondent's counsel
filed a request to dismiss this case on the ground that the
respondent agreed to pay the proposed civil penalty assessments in full.
On August 13, 1987, I issued an order denying
the motion, and directed the parties to file an appropriate

1784

settlement motion pursuant to Commission Rule 30, 29 C.F.R.
§ 2700.30.

On August 25, 1987, the parties filed a joint motion for
approval of a proposed settlement of the case, and the respondent agreed to pay the proposed civil penalty assessments in
full. The parties stated that the cited conditions were
corrected and abated at 5:00 p.m., April 17, 1986, and that
the imminent danger order was lifted at that time. They also
agreed that the citations should be affirmed witqout further
modification.
In view of the fact that the settlement motion failed to
include any information with respect to the six statutory
criteria set forth in section llOCi) of the Act, my dispositive ruling was held in abeyance in order to afford the parties an opportunity to present the information on the record
during the course of the scheduled hearings.
During the course of the hearings, the parties stipulated
to the following:
1. The violations occurred as stated in
the subject citations.
2. For the calendar year 1986, the
respondent produced 1.7 million tons of coal.
3. For calendar year 1986, the respondent had approximately 384 employees.
4" The proposed civil penalty assessments will not adversely affect the respondent us ability to continue in business.
5. The respondent exhibited good faith
in timely abating the cited conditions.
Since the parties have agreed that the citation may be
affirmed as issued, I adopt the inspector's negligence,
gravity, and "S&S" findings on these issues, and take note of
the respondent's history of prior violations as stated in the
petitioner's pleadings
ing 127 prior assessed violations during 450 inspection days during the 24-month period
prior to the issuance of the citations in question.

1785

DOCKET NO. KENT 87-79
This case concerns four section 104(a) "significant and
substantial" (S&S) citations issued by MSHA Inspector James E.
Franks on October 21, and November 17, 1986. The three citations issued on October 21, relate to an inadequate quantity
of air, excessive levels of methane, and inadequate rock dusting. The inspector cited violations of mandatory safety standards 30 C.F.R. § 75.301, 75.308, and .. 75.403. He also found
that the cited conditions, taken collectively, constituted an
imminent danger, and he issued a section 107(a) order withdrawing miners from the cited areas.
The remaining citation issued by the inspector on
November 17, cites a violation of mandatory safety standard
30 C.F.R. § 75.316, and relates to a violation of the respondent's approved mine ventilation plan in that the inadequate
ventilation resulted in the presence of excessive methane
levels in an abandoned area of the mine.
In conjunction with
this citation, the inspector issued a section 107(a) imminent
danger order on November 17, ordering the withdrawal of miners
from the areas where methane was detected. The record
reflects that the citation was terminated on the same day that
it was issued after adequate ventilation was restored, and the
inspector subsequently modified the citation to change the
number of mine personnel exposed to the hazard from 24 to 12.
The respondent asserted that the imminent danger order
issued by the inspector was invalid in that the air bottle
sample taken by the inspector to support the order, when
testedv reflected the actual presence of only a maximum of
103 percent methane, which was well within MSHA 1 s standards.
Since MSHAis proposed civil penalties for the three citations
which the inspector believed collectively constituted an imminent danger were "specially assessed" because of the issuance
of the order, respondent's counsel disputed the validity of
those assessments based on an "invalid order."
Petitionervs counsel agreed that the bottle sample
reflected the presence of 1.33 percent methane in the affected
areas.
In further mitigation of the citations, counsel stated
that the respondent cooperated fully with the MSHA inspector
in conducting an evaluation of the ventilation in the affected
areas.
With regard to Citation No. 2216514, petitioner's counsel
introduced a copy of the mine map confirming the fact that the
methane found in the inadequately ventilated area was in fact
found in an abandoned area of the mine (exhibit G-1).
Counsel

1786

also confirmed that no methane accumulations were reaching the
working face areas of the mine.
In mitigation, respondent's answer to the petitioner's
civil penalty proposal includes notes by the respondent's
Assistant Safety Director Grover Fishbeck reflecting that the
assistant mine foreman and another employee were in the cited
area at the beginning of the shift and were attempting to
deal with the ventilation problem when the inspector arrived
at the scene, and that a recent fall had blocked ~he air
course.
Mr. Fishbeck, who was present in the courtroom, stated
that the ventilation problem was corrected shortly after the
citation was issued, and that a telephone call was placed to
MSHA between 2:30 and 3:00 p.m., that same day, reporting the
fact that corrective action had been taken to restore the
ventilation, and requesting that an inspector come to the
mine to terminate the citation.
Petitioner's counsel did not refute Mr. Fishbeck's assertions, and the record reflects that the citation was terminated by MSHA Inspector Ronald D. Oglesby at 5:00 p.m., on
November 17, 1986.
The parties proposed to settle all of the citations in
this case, and they agreed that civil penalty assessments of
$500 for each of the citations was reasonable and appropriate.
Respondent agreed to pay civil penalty assessments totaling
$2,000 in satisfaction of the four citations in question.
DOCKET NO. KENT 87-32
This case concerns a section 104(d){l) "significant and
substantial" Order No. 2216241, issued by MSHA Inspector L.
Cunningham on July 15, 1986, citing a violation of mandatory
safety standard 30 C.F.R. § 75.400. The inspector issued the
order
ter finding accumulations of loose coal and float
coal dust alongside and under a belt conveyor in "spot locations" on the mine floor and walkway. He also found float
coal present in the crosscuts adjacent to the belt, and that
the belt bottom and rollers were running in the loose coal at
three locations.
He noted that the fire boss records for
July 12-15, 1987, included notations that certain locations
along the belt were in need of cleaning and dusting.
The record reflects that the inspector modified his order
approximately 3 hours
it was issued to allow normal
production to begin as long as miners were assigned to clean

1787

and re-rockdust the cited areas. The record also reflects
that the order was terminated at 11:30 a.m., on July 17, 1986,
after the cited areas were cleaned up and re-rockdusted.
The parties proposed a settlement of this case, and the
respondent agreed to pay the full amount of the proposed civil
penalty assessment of $800 for the violation in question.
DOCKET NO. KENT 87-33
This case concerns two section 104(d)(l) "significant
and substantial" (S&S) orders issued at the mine on August 2
and 5, 1986, one "S&S" section 104(a) citation issued on
August 2, 1986, and one non-"S&S" section 104(a) citation
issued on August 2, 1986. The citations and orders relate to
accumulations of loose coal and float coal dust on the mine
floor along a belt conveyor, the failure to preserve an "accident site" where a methane ignition occurred, accumulations
of loose coal and dust along a belt feeder, and a failure to
follow the roof-control plan with respect to the installation
of roof timbers. The inspector cited violations of mandatory
safety standards 30 C.F.R. § 75.400, 50.12, and 75.200.
The parties agreed to settle all of the violations, and
the respondent agreed to pay the full amount of the proposed
civil penalty assessments for three of them. With regard to
Citation No. 2216814, for a violation of 30 C.F.R. § 50.12,
the parties agreed that a civil penalty assessment of $50 is
reasonable and appropriate for the violation, and the respondent agreed to pay that amount.
Citation No. 2216814, concerns a non-"S&S" violation of
30 CoF.R" § 50,12. This section prohibits a mine operator
from altering an "accident site or an accident related area"
until the completion of an MSHA investigation. The standard
contains certain exceptions which do not apply in this case.
The inspector issued the citation after finding that a
face methane ignition had occurred. Production was stopped,
but a shot firer shot the area where the purported ignition
occurred, thereby "altering" the location of the ignition.
By definition found in section 50.2, an "accident" includes
an unplanned methane gas ignition, and the parties agreed
that the purported ignition is within that definition. ·
The parties explained the circumstances connected with
the incident which resulted in the issuance of the citation.
They agreed that the section foreman acted properly and in
good faith by immediately taking appropriate action to report

1788

the ignition to MSHA and to preserve the site. However, the
shot was fired inadvertently before this could occur, and it
was not the result of any or intent by the respondent to
avoid compliance with the standard.
With regard to the coal accumulation violation,
No. 2216816, the respondent submitted an affidavit from Face
Boss Robert Sandidge, stating that at the time the violation
was issued, the unit was idle due to the ignition, and that
the cited area would have been cleaned during the. normal
mining cycle but for the ignition.
With regard to coal accumulation violation No. 2216247,
the respondent submitted an affidavit from foreman Finis Todd,
stating that at the time the violation was issued, three men
were cleaning the belt during all hours of the working shift
in question.
In addition, the respondent's Assistant Safety
Director Grover Fishbeck, produced copies of certain mine
records for July 25-28, 1986, supporting the respondent's
contention that the belt was being cleaned.
Findings and Conclusions
After review of the pleadings filed by the parties in
these proceedings, and upon careful consideration of the arguments advanced in support of the proposed settlement disposition of these cases, I conclude and find that the proposed
settlements are reasonable and in the public interest. I also
conclude and find that the parties have presented reasonable
justifications for the reduction of the civil penalty assessments as noted above.
Accordingly, pursuant to 29 C.F.R.
§ 2700,30u the settlements ARE APPROVED.

The respondent IS ORDERED to pay civil penalty assessments in the settlement amounts shown above in satisfaction
of
violations in question within thirty (30) days of the
date
these decisions and order, and upon receipt of payment
by the petitionerv these proceedings are dismissed .

. ~·. 4.~
~Koutras

Administrative Law Judge

1789

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215 (Certified Mail)
Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica
Street, P.O. Box 390, Owensboro, KY 42302-0390
(Certified Mail)

/fb

1790

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

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

OCT 201987

.
.
.
.

RONALD R. MORRIS,
Complainant

:

v.

..
.

DUNKARD MINING CO.,
Respondent

DipCRIMINATION PROCEEDING
Docket No. PEMN 87-77-D
PITT CD 86-15

DECISION
Appearances:

Harold Cancelmi, Esq., Thompson and Baily,
Waynesburg, Pennsylvania, for Complainant;
C. Robert McCall, Esq., McCall, Stets & Hardisty,
Waynesburg, Pennsylvania, for Respondent.

Before:

Judge Weisberger

Statement of the Case
Complainant filed a complaint with the Commission under
section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c) (the Act) alleging, in essence, that he was
illegally discriminated against in that he made a valid safety
complaint which caused "the loss of my employment."
Pursuant to noticeu the case was set for hearing in
Washingtonu Pennsylvania on March 17, 1987. On March 17, 1987,
the Complainant and Respondent both appeared, and the Complainant
was represented by Counsel. The Respondent made a motion to have
the case adjourned in order to be represented by Counsel. This
motion was granted, and the case was rescheduled for May 27v
1987v in Pittsburghv Pennsylvania. At the hearing, on
May 27 - 28, 1987 1 Ronald D. Morris, Frank Rutherford, and Ann
Kerr testified for the Complainant. Ernest Sauro, Barbara Smith,
Barbara Bircherv Harvey Licten, Floyd Jenkins, Karl-Hans Rath,
Barbara Betchy, and James Earl Mason testified for the Respondent.
SQbsequent to the hearing, Respondent, on July 7, 1987, requested
an extension of time until August 4, 1987, to file Posthearing
Findings oi Fact. On July 30, 1987, Complainant, on behalf of
ooth Parties, requested a further extension until August 24, 1987.
On August 26, 1987, Respondent filed its Posthearing Brief and
Requested Findings of Fact. On August 24, 1987, and September 10,
1987, Complainant requested further extensions of time to file its

1791

brief and Requested Findings of Fact. These requests were granted.
Complainant filed his Requested Findings Fact and Memorandum Brief
on October 5, 1987.
Issues
1. Whether the Complainant has established that he was
engaged in an activity protected by. the Act.
2. If so, whether the Complainant suffered ad~erse action
as the result of the protected activity.
3.

If so, to what relief is he entitled.

Findings of Fact
Complainant and Respondent are protected by, and subject to,
the provisions of section lbS(c) of the Act. I have jurisdiction
to decide this case.
The Complainant, commencing in April 1985, and continuing
through all dates in question herein, was a truck driver for the
RMW Trucking Company which had an agreement to haul coal from
Respondent's mine and dump it at Respondent's processing plant.
The Complainant, in essence, has alleged that as a consequence of
safety complaints that he made to Respondent, the Respondent
"barred" him from entering on Respondent's property and as such,
according to a complaint filed with the Commission, caused the
loss of his employment.
On January 14u 1986, the truck that the Complainant was
drivingv skidded on the Respondent 1 s haulage road which was snow
coveredv and had a maximum grade of 20 percent. In this connection I base my finding upon the testimony of Rath as it was
predicated upon a detailed topographical map, Exhibit 2, rather
than upon the approximations of Morris and Sauro.
The testimony was in conflict between Ronald Ro Morris
(Complainant) on the one hand, and Carl-Hans Rath (Respondentvs
Vice President) and Ernest Sauro (Respondent's Superintendent),
on the other hand, with regard to the following:
the time the
incident occurred, whether it was witnessed by Rath, whether the
Morris' truck skidded down the slope or on a level grade at the
end of the slope, the order in which Morris and Harvey Litten,
another truck driver employed by RMW Trucking, arrived at the
processing plant, and whether, after the incident, Morris drove
back up the hill or left by another exit. Although the weight of
the evidence tends to support the version testified to by Rath,
as it was corroborated by Sauro and Litten, it is not critical to
these proceedings to reconcile all these conflicts.

1792

Morris, on January 14, 1986, after the truck skidding
incident occurred, did not register any safety complaints about
the condition of the road with either Sauro or Rath.
On January 15, 1986, Rath observed that the truck that
Morris was driving, had coal left in its bed after the rest of
the load had been dumped. He requested Morris to either clean
the truck of the remaining coal or get it light weighed. Morris
testified that he complied with this request. According to the
testimony of Rath, Morris first responded by telling Rath that he
(Rath) was not to tell him (Morris) anything. I find that Morris
did respond as testified to by Rath, as Rath's testimony was not
rebutted by Morris when he testified in rebuttal.
According to Morris, he then saw Rath in the weighhouse and
said that he had done Rath .a favor in light weighing the coal and
asked Rath to do him a favor in keeping the road clear. He
testified that he then told Rath about the incident of the truck
skidding on January 14. Morris testified that Rath did not
respond.
Morris testified that later on in the day he was asked by
the weighmistress to go to the off ice to see Rath. Morris testified that when he saw Rath in the office there was no one else in
the area and Rath said that he was the boss of the company and
that he was not going tell his employees to stay late or to pay
them overtime to clean the haulage road of snow. Morris testified
that Rath told him that he was not to make complaints about the
road conditionu
According to Morris? after he spoke with Rath, he received
permission from the weighmistress to use the telephone in
Respondent~s office, and called his union representative, Frank
Rutherford, at UMW Headquarters. He testified that he told him
he had a safety problem and " ••. started to relate to him what
happeneduoo'u (Tro 60)o Rathu who was in another office, then
picked up the phone and told Morris, in essence, not to use the
off ice phoneo
Morris further testified that at the end of the day he
returned to the RMW Company and JameB Earl Mason, RMW's owner,
told him that Rath had called on the telephone and told him that
he (Morris) is no longer to be allowed on the site. Morris testified that when he asked Mason for the reason, Mason said that he
understood that Morris had made complaints about the road
condition.

1793

Rath testified, in essence, that after Morris had refused to
follow instructions to either clean out the truck or get it light
weighed, he asked Barbara Smith (Respondent's payroll clerk),
Barbara Bircher (Respondent's bookkeeper and weighmistress), and
Barbara Betchy (Respondent's office manager) to identify Morris.
Rath testified that he could not recall who said what, but that
these employees complained that Morris had dumped coal on
Taylortown Road, and had sat around for 2 to 3 hours if anything
was wrong with his truck. He also testified that Smith, Bircher,
and Betchy had told him that Morris had dumped coal in the wrong
places and when reminded responded by saying "don't" tell me
anything." I adopted Rath's testimony as to what was told to him
as it was essentially corroborated by Bircher and Betchy.
Subsequently, Rath asked Morris to come to his office. Rath
told Morris that the women in the off ice had complained about him.
Rath testified that Morris said that he (Rath) was not his boss.
Rath said that Morris then ·told him that the road the previous
night was not in good condition and he requested that an employee
be on the premises all night to clear the road of snow. I adopt
Rath's version of this conversation as it was corroborated, in
the essential parts, by Betchy and Smith.
After this conversation occurred, Rath testified that he
called Mason and asked him to replace Morris as the latter was
not following instructions. Rath further said that later on
Mason called back to ask him to reconsider and he refused. I
accept Rath's version of what he told Mason as it was essentially
corroborated by Masono
Morris testified that subsequent to January 15, 1986, RMW
trucking employed him maybe a total of 5 or 6 weeks in 1986 to
drive a truck at sites other than Respondent's facilities. He
testified that he did not have any other earnings in 1986, aside
from unemployment compensation, and that he is presently
unemployedo
Discussion
The Commission, in a recent decision, Goff v. Youghiogheny &
Ohio Coal Company, 8 FMSHRC 860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Coinmission, Goff, supra, at 1863,
stated as follows:
~~
A complaining miner establishes a prima f acie case of
prohibited discrimination under the Mine Act by proving
that he engaged in protected activity and that the
adverse action complained of was motivated in any part

1794

by that activity. Pasula, 2 FMSHRC at 2797-2800;
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. Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
(D.C. Cir 1984); Baich v. FMSHRC, ~19 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test).
Applying the above standards to the case at bar, I find that
the evidence is uncontradicted that on January 15, 1986, Morris
voiced his concern about the road conditions at Respondent's
preparation plant the day before. Further, based on the 20
percent grade of the haulage road, Morris' testimony that it was
snow covered, as corroborated by Sauro's comment that it was
"slick," along with the fact that Morris' truck did skid, whether
on the level or on a grade, established that Morris had good
cause in voicing his complaint to Rath about the condition of the
roadway. Furthermore, the action of Rath in effect telling Mason
on January 15, 1986v to stop using Morris as a truck driver on
Respondent's premises, was adverse to Morris, as it, in essence,
prevented him from working for Ri.">iW Trucking Company on a full
time bases. Moreover, inasmuch as Rath took this action right
after Morris had voiced complaints about the road condition, and
after the latter attempted to contact his union representative, I
find that the adverse action was motivated in part by Morris'
protected activity. According, I find that Morris has established a prima facie caseo
(Secretary on behalf of Robinette Vo
United Castle Coal Co.u 3 FMSHRC 803v (April 1981)).
In analyzing whether Respondent has rebutted the Complainantvs
prima facie case, I found Rathvs testimony credible as to his motivation in having Morris replaced as a truck driver on Respondent's
premises. In this connection, I found that Betchy, Smith, and
Bircher told Rathe on January 15u 1986u that Morris has said "donvt
tell me anythingu" when reminded that he had dropped coal in the
wrong places. In addition, I found that, on January 15, 1986, when
Rath requested Morris early in the day to clean the truck bed or
light weigh, Morris had told Rath not to tell him anything. Also, I
found that subsequently on January 15, 1986, when Rath told Morris
that the women in his off ice had complained about him, Morris had
said that Rath was not his boss.
I find that Morris' comments and
responses were unprotected activities.
Based upon the above, I find that when Rath told Mason on
January 15, 1986, to no longer have Morris sent to Respondent's
facilities, Rath was motivated by commants made to him by Morris

1795

as well as information provided to him by Bircher, Betchy, and
Smith of Morris' responses to their requests. I therefore conclude that the adverse action taken by Rath would have been taken
in any event for the unprotected activities alone. Accordingly,
I find that the Complainant has failed to establish a case of
prohibited discrimination under the Act. (see, Sedgmer v.
Consolidation Coal Co., 8 FMSHRC 303, 306 (March 1986)).
ORDER
Based upon the above findings of fact and conclusions of law
it is ORDERED that this proceeding be DISMISSED.

£~

Avram Weisberger
Administrative Law Judge

Distribution:
Harry J. Cancelmi, Jr., Esq., Thompson and Baily, 52 Church Street,
Waynesburg, PA 15370 (Certified Mail)

c. Robert McCall, Esq., McCall, Stets & Hardisty, Fort Jackson
Building, Waynesburg, PA 15370 (Certified Mail)
dcp

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

22041

OCT 2 0 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS·rRATION (MSHA)
ON BEHALF OF DAVID WILLIS
Complainant

v.

DISCRIMINA'rION PROCEEDING
Docket No. WEVA 87-106-D
HOPE CD 86-24
HOPE CD 87-2

BABCOCK MINING CO.;
HENRY McCOY, Individually
and as Operator of Babcock
Mining Co.; VIRGIL McMILLION,
Individually and as Operator
of McMillion Enp., Inc.,
McMILLION ENP., INC., CRAFT
COAL COMPANY,
Respondents

No. 1 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA·rroN CMSHA),
ON BEHALF OF ALBER'r HALSTEAD
Complainant

DISCRIMINATION PROCEEDING

v.
BABCOCK MINING CO.;
HENRY McCOY Individually
and as Operator of Babcock
Mining Co., VIRGIL MCMILLION,
ENP, INC.1 CRAFT COAL COMPANY,:
Respondents

Docket No. WEVA 87-107-D

HOPE CD 87-1
HOPE CD 87-4
No. 1 Mine

DEFAULT DECISION
Before~

Judge Fauver

On October 6F 1987u an Order to Respondents to Show Cause
was issued, allowing Respondents 10 days to show cause why the
Secretary's Motion for a Default Decision should not be granted
in each of the above cases.
Respondents have not responded to the Show Cause Order. The
Secretary has moved to withdraw Craft Coal Company as a Respondent,
and asks for a default decision against the other Raspondents.

1797

ORDER
FOR GOOD CAUSE SHOWN IT IS ORDERED:
1. The Secretary's Motion to Withdraw Craft Coal Company as
a Respondent is GRANTED, and the above cases are DISMISSED as to
Craft Coal Company. The hearing scheduled for October 27, 1987,is
CANCELLED.
2. The Secretary's Motion for a Default Decision against
the other Respondents shown above is GRAN'rED in each of the above
cases. The allegations of the Petition in each case are deemed
to be true and are incorporated herein as Findings of Fact and
Conclusions of Law in each case respectively. The Secretary
shall have 10 days from this date to submit a proposed order for
reli
in each of the above cases.
3. This Decision shall not operate as a final disposition
of these cases until an order for relief is entered in each of
the above cases.

uJ~-.+(AMv
William Fauver~

Administrative Law Judge

Distribution:
Carol B. Feinberg, Esq., Office of the Solicitor, u. s. Department
of Laborv Room 516v 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

1 McMillion, Presidentv McMillion
ck, WV 24966 (Certified Mail)

Enp., Inc. 1 Box 13,

Ro So Baileyv President, Craft Coal Company, State Route 15,
Monterville, WV 26282 (Certified Mail)

Babcock Mining Company, c/o Drew Hunter, Secretary, P. O.
Box 2057, Ashland, KY 41105 (Certified Mail)
Henry McCoy, Babcock Mining Company, P. O. Box 2857, Ashland, KY
41105 (Certified Mail)
dcp

1798

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

LOCAL UNION 1261, DISTRICT 22,
UNITED MINE WORKERS OF
AMERICA,
Complainant

OCT 2 2 1987

COMPENSATION PROCEEDING
Docket No. WEST 86-199-C
Emery Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Before:

Judge Morris

This is a proceeding for compensation under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et~· (the Act).
The parties waived their right to a hearing and submitted the
case for a decision on stipulated facts.
Briefs were further submitted by the parties in support of their respective positions.
ts sue
The issue is whether the miners are entitled to compensation
under Section 111 of the Act when they had been withdrawn by the
operator before MSHA issued an order under § 103(k) of the Act.
Applicable Statute
Section 111 of the Act provides as

follows~

"ENTITLEMENT OF MINERS"
~sec. 111.
If a coal or other mine or area of
such mine is closed by an order issued under section 103,
section 104, or section 107, all miners working during
the shift when such order was issued who are idled by
such order shall be entitled, regardless of the result
of any review of such order, to full compensation by the
operator at their regular rates of pay for the period
they are idled, but for not more than the balance of such
shift. If such order is not terminated prior to the next
working shift, all miners on that shift who are idled by
such order shall be entitled to full compensation by the
operator at their regular rates of pay for the period they
are idled, but for not more than four hours of such shift.

1799

If a coal or other mine or area of such mine is closed by
an order issued under section 104 or section 107 of this
title for a failure of the operator to comply with any
mandatory health or safety standards, all miners who are
idled due to such order shall be fully compensated after
all interested parties are given an opportunity for a
public hearing, which shall be expedited in such cases,
and after such order is final, by the operator for lost
time at their regular rates of pay for such time as the
miners are idled by such closing, or for one week, whichever is the lesser. Whenever an operator violates or
fails or refuses to comply with any order issued under
section 103, section 104, or section 107 of this Act,
all miners employed at the affected mine who would have
been withdrawn from, or prevented from entering, such
mine or area thereof as a result of such order shall be
entitled to full compensation by the operator at their
regular rates of pay, in addition to pay received for
work performed after such order was issued, for the
period beginning when such order was issued and ending
when such order is complied with, vacated, or terminated.
The Commission shall have authority to order compensation
due under this section upon the filing of a complaint by
a miner or his representative and after opportunity for
hearing subject to section 554 of title 5, United States
Code.
Stipulated Facts
The parties stipulated as

follows~

lo The Federal Mine Safety and Health Review Commission has
jurisdiction over this matter;
2o The relevant members of Local Union 1261 are underground
coal miners who are employed at Consolidation Coal Company 1 s
(Consol) underground Emery Mine. The UMWA is the authorized
representative of such miners for purposes of this proceeding;
3o The Emery Mine is a mine whose operations and products
affect interstate commerce;

1800

4. On April 16, 1986 at 7:00 p.m., Consol removed its employees from the Emery Mine to insure their safety because of
rising gas levels behind the North seals. Consol informed the
afternoon shift employees that the mine was idled until further
notice because of the rising gas levels. Consol's office manager
and foremen called the miners who were scheduled on the next two
shifts (graveyard and daylight) and told them "the mine is idle
until further notice. 11 All underground miners who worked on that
date were paid for the time worked. The day shift employees on
April 16, 1986, worked a full shift and the afternoon shift employees on that date worked four and one-half C4 1/2) hours;
5. Concurrent with Consol's management's decision to remove
its employees from the mine, Consol notified MSHA and the UMWA of

that action;
6. MSHA personnel arrived at the mine on the morning of
April 17, 1986, and conducted an investigation which included
a review of the air samples taken by Consol. MSHA Inspector
Donald B. Hanna issued an order under §103 (k) of the Act at
7:14 a.m. on April 17, 1986;
7. The § 103 Ck) order states "Based on the results of air
samples taken by the Company •.• this mine has experienced a
possible fire, therefore, all persons has (sic) been removed from
the mine by Company order to insure their safety and no person
shall enter inby the mine portals without modification of this
orderf after consultation with appropriate persons selected from
Company officialsv State officialsu the miners representative
and other persons"
8. At the time the §103 Ck) order was issued, no Local
Union 1261 underground miners were working. After the § 103,(k)
order was issuedu no miners could enter the mine nor could
mining activities resume until MSHA modified the order~
9, The § 103(k) order never alleged that Consol had committed any violation of a mandatory standard and the order was

not issued under

§

104 or § 107 of the Act;

lOo Consol did not pay any Local Union 1261 underground
miners for ~pril 17u 1986;
11. On April 20, 1986, at 2:36 p.m. the§ lOJ(k) order
was modified to allow mining to resume, and on May 16, 1986, at
2:00 p.m. the order was terminated.

1801

Discussion
The miners involved here seek compensation under Section 111
of the Act. The pivitol stipulated facts establish that MSHA
issued a § l03(k) order on April 17, 1987. The operator contends
the miners are not entitled to compensation on that date because
the company had already voluntarily withdrawn them from the affected area.
Previous Commission decisions construing this section are
not factually controlling since they involve the last paragraph
of the section.
Local Union 1609, District 2, United Mine Workers
of America v. Greenwich Collieries, (Division of Pennsylvania Mines
Corporation, 8 FMSHRC 1302 (1986); Local Union 2274, District 28,
United Mine Workers of America v. Clinchfield Coal Company, 8 FMSHRC
1310 (1986); Local Union 1889, District 17, United Mine Workers v.
Westmoreland Coal Company, 8 FMSHRC 1317 (1986).
However, I am persuaded by the reasoning in Mine Workers,
District 31 v. Clinchfield Coal Company, 1 MSHC 1010 (1971),
(Interior Board of Mine Operations Appeals); Mine Workers Local 1993
v. Consolidation Coal Company, 1 MSHC 1668 Cl978)(Broderick, J.);
and Mine Workers Local 2244 v. Consolidation Coal Company, 1 MSHC
1674 (Fauver, J.).
In sum, these cases hold that an MSHA withdrawal
order is more extensive in scope than a voluntary withdrawal by the
operator.
Specifically, an MSHA order prohibits reentry until the
danger no longer exists. Further, regardless of the sequence of
events or the method by which the miners were originally withdrawn,
a mine, or section thereof v is officially closed upon the issuance of
an order under the Acto The miners were thus officially idled by the
l03(k) order"
It followsv accordingly, that the miners are entitled to compensation under the Act.

~

~~'fC-~.....L~l!!.r r is

ative Law Judge
Distribution:
Joyce Hanula, Legal Assistant, United Mine Workers of America,
900 15th Street, N.W., Washington, D.C. 20005
(Certified Mail)
Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241
(Certified Mail)

/ot

1802

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

22041

OCT 2 3 1987

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 86-126
A.C. No. 15-12295-03533

v.
Docket No. KENT 86-127
A.C. No. 15-12295-03534

J. C. LONDON COAL COMPANY,
INC. I
Respondent

No. 1 Mine
DECISIONS

Appearances:

G. Elaine Smith, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section

llO(a) of the Federal Mine Safety and Health Act of 1977u
30 u.s.c. § 820(a)u seeking civil penalty assessments for
18 alleged violations of certain mandatory safety and health
standards found in Pa~ts 70, 75, and 77, Title 30, Code of
Federal Regulations.
The respondent contested the proposed civil penalty
assessmentsv and pursuant to notice served on the parties, a
hearing was convened in Paintsville, Kentucky, on Thursday,
September 24ff 1987. The petitioner appeared, but the respondent did not.
Under the circumstances, the hearing proceeded
without the respondent and the petitioner presented testimony
and evidence with respect to the violations in question.
Issues
The issues presented in this proceeding are whether the
respondent has violated the cited mandatory safety standards,
and if so, the appropriate civil penalty to be assessed for

1803

those violations based on the criteria found in section llO(i)
of the Act. The matters concerning the respondent's failure
to appear, and its purported bankruptcy status, are discussed
in the course of these decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2.

Section llOCi) of the 1977 Act, 30 U.S.C~ § 820(i).

3.

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

Respondent's Failure to Appear at the Hearing
Respondent, who is pro se, failed to appear at the scheduled hearing. The record reflects that the initial hearing
notice, and subsequent amendments notifying the parties of the
time and place of the hearing were duly served on the respondent. The postal service return certified mail receipts
reflects that each of the notices were served on the respondent's corporate president Harold c. Hale, and Mr. Hale signed
each of the mailing receipts.
It seems clear to me that the failure of a partyrespondent to appear at a hearing pursuant to a duly served
order and notice issued by the judge is sufficient ground for
the judge to hold the respondent in default and to proceed
without himu Williams Coal Co., 1 FMSHRC 928 (July 1979);
White Oak Coal Company, 7 FMSHRC 2039 (December 1985);
Neibert Coal Companyr Inc.v 7 FMSHRC 887 (June 1985);
Sand Company, 8 FMSHRC 973 (June 1986).
The respondent has had an ample opportunity to refute the
leged violations and proposed civil penalty assessments
filed by the petitioner. However, since the respondent is no
longer in business and has previously indicated that it was
either in bankruptcy or had contemplated filing for bankruptcy, it seems obvious to me that it no longer wishes to
litigate this matter. Under the circumstances, I find the
respondent to be in default, and I have considered its failure
to appear at the hearing as a waiver of its right to be heard
on the merits of the violations and the proposed civil penalty
assessments.

1804

Respondent's Bankruptcy Status
In response to an Order to Show Cause issued by Chief
Judge Paul Merlin, Mr. Hale indicated that he was "in the
process of going or filing bankruptcy," and he furnished the
name and address of the attorney who was representing him in
the bankruptcy proceeding. A subsequent letter of record
from this attorney reflected that the attorney had done some
legal work for Mr. Hale in the past, but the attorney clearly
stated that he was not representing Mr. Hale in the instant
proceedings.
During the course of the hearing, petitioner's counsel
produced a copy of the respondent's 1986 Federal tax return
{exhibit P-2), furnished by Mr. Hale. Counsel stated that
based on information furnished by Mr. Hale's former attorney,
although the respondent had contemplated filing for bankruptcy, it has not done so and no bankruptcy proceeding has
been formally initiated or finalized.
In view of the respondent's failure to appear at the
hearing or to further communicate with petitioner's counsel
in this matter, no further information has been forthcoming
with respect to the respondent's bankruptcy status.
However,
the fact that the respondent may be in bankruptcy does not
divest the Commission or its judges of jurisdiction to proceed
with the adjudication of these cases. Leon's Coal Company,
et. al., 4 FMSHRC 572 (April 1982); Oak Mining Company,
4 FMSHRC 925 (May 1982); Stafford Construction Company,
6 FMSHRC 2680 (November 1984). Accordingly, I conclude and
find that I have jurisdiction to adjudicate these matters.
PetitionerDs Testimony and Evidence
In support of the violations in question, petitioner
presented the testimony of MSHA Inspectors John Smallwood and
Charles Slone. The inspectors testified that Mr. Hale operated the mine for approximately 6 months after purchasing an
existing coal mining lease on the propertyo The information
provided by the inspectors reflects that the respondent ceased
its mining operation in approximately April or May, 1986, and
that the mine is now idle and all of the equipment had been
removed from the mine and reclaimed by the company who leased
it to the respondent. The inspectors confirmed that to their
knowledge, Mr. Hale is not mining at any other locations
within their enforcement jurisdiction.
The record reflects that in Docket No. KENT 86-126, the
respondent was served with nine section 104(a) citations for

1805

violations of certain mandatory safety standards found in
Parts 75 and 77, Title 30, Code of Federal Regulations. Three
of the citations were non-significant and substantial CS&S),
and five were designated as "S&S" violations by the inspectors
who issued them.
The record reflects that in Docket No. KENT 86-127, the
respondent was initially served with eight section 104(a)
citations for violations of certain mandatory safety and
health standards found in Parts 70 and 75, Title 30, Code of
Federal Regulations. An additional section 104Ca) citation
was issued in conjunction with a section 107(a} imminent danger order. Five of the citations were non-S&S violations,
and four were issued as S&S violations. Further, the record
reflects that when the inspector next returned to the mine he
found no one there, and since the violations had not been
abated, he issued section 104(b) withdrawal orders for
non-abatement of the cited conditions.
Inspectors Smallwood and Slone confirmed that they issued
the citations and orders in question, and they confirmed that
they were issued in the course of their regular inspections of
the mine. The inspectors confirmed that the citations were
served on a representative of the respondent who was at the
mine when it was in operation, and they te~tif ied as to the
conditions or practices which caused them to issue the violations. They also confirmed their negligence and gravity findings as shown on the face of the citations.
In Docket No. KENT 86-126, the inspectors testified that
the violations in question were timely abated by the respondent in good faith, and Inspector Smallwood testified that
th2 respondent was a cooperative mine operator who made a
good faith effort to comply with MSHA's mandatory safety and
health standards.
With regard to Docket No. KENT 86-127, Inspector
Smallwood confirmed that the section 104(b) orders which were
issued for eight of the section 104(a) citations were served
on the respondent by certified mail. Mr. Smallwood explained
that when he next returned to the mine on May 5, 1986, to
abate the citations, the mine was idle and no one was there.
He made several subsequent trips to the mine and attempted to
contact the respondent by telephone in an effort to ascertain
whether or not the cited conditions had been abated.
Mr. Smallwood stated that he was unable to contact the respondent, and that the respondent did not contact him to discuss
the matter. Under the circumstances, Inspector Smallwood
issued the section 104(b) withdrawal orders, and he confirmed

1806

that this was his normal procedure. He conceded that it was
possible that the cited conditions were corrected before his
May 5, 1986, visit to the mine, but since it was idle and he
could not gain access to the mine, he had no way to confirm
whether or not the violations had been abated.
Findings and Conclusions
Fact of Violations
Although given an opportunity to rebut the violations,
the respondent has not done so. Accordingly, on the basis of
the record in these proceedings, including the testimony of
the inspectors who issued the citations, I conclude and find
that the petitioner has established each of the violations,
and the citations ARE AFFIRMED as issued by the inspectors.
History of Prior Violations
The respondent's history of prior violations is reflected
in an MSHA computer print-out (exhibit P-1). The print-out
reflects that for the period January 29, 1986 to April 13,
1986, the respondent was served with 18 violations, 12 of
which were "significant and substantial" (S&S) violations.
The respondent paid the civil penalty assessments for six of
the violations. I cannot conclude that the respondent's past
compliance record is such as to warrant any additional
increases in the civil penalty assessments made for the violations which have been affirmed in these proceedings.
Good Faith Compliance
In Docket Noo KENT 86-126v the record establishes that
the respondent timely abated the cited violations in good
faith.
I take note of Inspector Smallwood's testimony that
the respondent was a cooperative mine operator who attempted
in good faith to comply with the law, and I have taken this
into consideration in my adjudication of these caties.
With regard to Docket No. KENT 86-127, although it is
true that the inspector issued section 104Cb) withdrawal
orders for failure by the respondent to abate the conditions,
I take note of the fact that ~t the time of his abortive
return visits to the mine, the inspector found that it was
abandoned and he could find no one to confirm whether or not
the violations had been corrected. I take note of the fact
that in one instance (Citation No. 2769497), 2-months passed
before the inspector next returned to the mine, and in the
remaining instances, approximately 3-weeks passed before the

1807

inspector returned to the mine. I also take note of the fact
that Inspector Smallwood conceded that it was possible that
the conditions had been corrected prior to his subsequent
mine visits, but he simply could not confirm this since he
was unable to communicate with the respondent, and the respondent did not return his telephone calls. However, based on
the inspector's credible testimony that he considered the
respondent cooperative, and the fact that prior citations
were timely abated, I have given the respondent the benefit
of the doubt and I cannot conclude that the respqndent acted
in bad faith in this case.
Negligence
The inspectors found moderate or low negligence with
respect to all of the citations issued in these proceedings.
Under the circumstances, I conclude and find that all of the
violations which have been affirmed resulted from the respondent's failure to exercise reasonable care, and that this
constitutes ordinary negligence.
Gravity
Docket No. KENT 86-127
In this case, the inspector found that Citation Nos.
2769497, 2769648, 2769649, 2769650, and 2769651 were non-S&S
and that an injury or illness was unlikely to occur as a
result of the cited conditions. He also found that the cited
conditions would not reasonably be expected to result in any
lost workdays. Under these circumstances, I conclude and
find that these violations were non-serious.
With regard to the remaining citations, the inspector
found that an injury or illness was reasonably likely to
occuru and in the case of the section 104(a)-107{a) citationimminent danger orderv he found that an injury or illness was
highly likely to occur. Under these circumstances, I conclude
and find that the violations were serious. I also affirm the
inspector 1 s S&S findings with respect to these violations.
Docket No. KENT 86-126
In this case, the inspector found that Citation Nos.
2769641, 2769642, and 2769652 were non-S&S and that an injury
or illness was unlikely to occur as a result of the cited
conditions. He also found that the cited conditions would
not reasonably be expected to result in any lost workdays.

1808

Under these circumstances, I conclude and find that these
violations were non-serious.
With regard to the remaining citations, the inspector
found that an injury or illness was reasonably likely to
occur.
Accordingly, I conclude and find that these violations
were serious.
I also affirm the inspector's S&S findings with
respect to these violations.
Size of Business and Effect of Civil Penalty Assessments on
the Respondent's Ability to Remain in Business
MSHA's proposed civil penalty assessment information
filed with its pleadings reflects that when the mine was in
operation it had an annual production of 62,500 tons. The
information provided by the inspectors who inspected the mine
and issued the citations in this case reflect that when the
mine was in operation there were approximately 10 miners working underground, and approximately two or three working on
the surface.
Petitioner's counsel agreed that the mine was a
small-to-medium sized operation when it was producing coal,
and I concur in this conclusion.
It seems clear to me that the respondent is no longer in
business at the mine in question.
Although a copy of the
respondent's 1986 tax return reflects that the mine operated
at a loss for that year, the respondent's failure to appear
at the hearing or to otherwise provide any credible information as to its present financial condition and ability to pay
the civil penalty assessments for the violations in question
precludes any finding by me that the respondent is unable to
pay those penalties. Based on the information of recordr it
does not appear that the respondent is in bankruptcy or that
the respondent or Mr. Hale, as its corporate president, is in
fact bankrupt.
Further, I take note of a letter dated
July 13y 1987~ to Mr. Hale from the petitioner's counsel,
which is in the official record of this case, indicating that
Mr. Hale's offer to settle these cases was rejected by the
petitioner.
Civil Penalty Assessments
In view of the foregoing findings and conclusions, I
believe that the petitioner's proposed civil penalty assessments in Docket No. KENT 86-126 are appropriate and reasonable, and they ARE AFFIRMED.
With respect to Docket No. KENT 86-127, I take note of
the fact that in the initial civil penalty assessments levied

1809

by the petitioner's Office of Assessments, no consideration
was given for the respondent's good faith compliance. The
five non-S&S citations which are normally assessed as "single
penalty assessments" pursuant to the petitioner's assessment
regulations, were assessed at higher monetary amounts, and
the remaining citations were assessed without regard to any
good-faith compliance. I believe that one can conclude that
the increased civil penalty assessments resulted from the
fact that the inspector issued sectio~ 104(b) orders when he
found that the mine was not in operation, and he could f 1nd
no one to confirm whether or not the violations had in fact
been abated.

It is well-settled that I am not bound by the petitioner's
proposed civil penalty assessments, nor am I bound by its civil
penalty assessment regulations found in Part 100, Title 30,
Code of Federal Regulations. Civil penalty proceedings before
the Commission and its judges are adjudicated de novo on a
case-by-case basis, and any civil penalty assessments levied by
a judge are based on his independent findings and conclusions
with respect to the particular case. On the facts of this
case, given my findings with respect to the-respondent's good
faith compliance, I conclude and find that some reduction with
respect to the civil penalty assessments proposed by the petitioner in Docket No. KENT 86-127 are reasonable and warranted
in the circumstances.
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, the following civil penalties are assessed by me for
the violations which have been affirmed in these proceedings:
DOCKET NOo KENT 86-126
Citation NOo
2769641
2769642
2769684
2769644
2769645
2769688
2769689
2769652
2769653

Date
04/09/86
04/09/86
04/09/86
04/10/86
04/10/86
04/10/86
04/10/86
04/14/86
04/14/86

30 C.F.R. Section
75.1805
75.1403
75.400
75.604(b)
75.1719-l(d)
75.604
75.17228
75.1103-4(a}
77.504

1810

Assessment
$ 20
$ 20
$ 50
$ 50
$ 54
$ 50
$ 50
$ 20
$ 50
$364

DOCKET NO. KENT 86-127
Citation No.
2769497
2769686
2769646
2769647
2769690
2769648
2769649
2769650
2769651

Date

30 C.F.R. Section

Assessment

02/10/86
04/09/86
04/10/86
04/10/86
04/10/86
04/14/86
04/14/86
04/14/86
04/14/86

75.313
75.514
75.1725
75.400
70.400
75.503
75.1107-4(a) (2)
75.316
75.1713-7(b)

$ 35
$140
$150
$100
$100
$ 50
$ 35
$ 35
$ 50
$695

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

4.~

• Koutras
Distribution:

Go Elaine Smith, Esq., Office of the Solicitor, U.S.

Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashvilleg TN 37215 (Certified Mail)

MrG Harold C~ Hale, President, J. c. London Coal Company,
Inc.1 Star Route 1, Box 118, Foster, WV 25081 (Certified
Mail)

/fb

1811

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

OCT 2 3 1987
CIVIL PENALTY PR0CEEDINGS

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

Docket No. KENT 87-95
A.C. No. 15-15684-03508

v.
Docket No. KENT 87-156
A.C. No. 15-15684-03509

HIGHWIRE, INCORPORATED,
Respondent.

No. 1 Mine
DECISIONS
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nasvhille, Tennessee,
for the Petitioner;
Eugene C. Rice, Esq., Paintsville, Kentucky,
for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment
civil
penalties 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 eight alleged violations of certain mandatory safety
standards found in Part 77, Title 30, Code
Federal Regulations.
These cases were among eight cases scheduled for hearing in
Paintsville, Kentucky, during the hearing term September 22-23,
1987. When the cases were called for trial, counsel for the
parties advised me that the parties agreed to a proposed settlement of the cases, and they were afforded an opportunity to
present their proposals on the record pursuant to Commission
Rule 30, 29 C.F.R. § 2700.30. The citations, proposed assessments,
and the settlement amounts are as follows:

1812

Docket No. KENT 87-95
Citation No.
2784217
2784219

Date

30 C.F.R.
Section

11/13/86
11/13/86

77.404(a)
77.410

Assessments

Settlements

$ 63
$ 63

$ 63
$ 63
$126

$126

Docket No. KENT 87-156
Citation No.
2780392
2780393
2780394
2780395
2780396
2780397

Date

30 C.F.R.
Section

03/04/87
03/04/87
03/04/87
03/04/87
03/05/87
03/05/87

77 .1605 (b)
77.1606(c)
.77.410
77.410
77.1606(c)
77.1606(c)

Assessments

$
$
$
$
$
$

Settlements

85
85
85
85
20
20

$380

$
$
$
$

85
85
85
85
$ 20
$ 20
$380

Discussion
In support of the proposed settlement of these cases, the
parties presented information with respect to the six statutory
civil penalty assessment criteria found in section llO(i) of the
Act.
The parties incorporated by reference certain stipulations
entered into in the prior proceedings conducted on September 22,
1987, and they are as follows:
lo

The respondent is subject to the Act.

2o
The respondent is a small-to-medium sized
operator engaged in auger and strip coal mining
activities.
During the period November, 1986
through March, 1987, the respondent employed
approximately 25-45 employees, with an annual coal
production of 241,616 tons.

3.
Respondent's history of prior violations
for the period July 1, 1986 through March 4, 1987,
reflects that the respondent paid civil penalty
assessments for 36 violations, all of which were
issued as section 104(a) citations.

4. All of the citations in question were
timely abated by the respondent in good faith.

1813

5. Payment of the proposed civil penalty
assessments will not adversely af
the respon' s ability to continue in business.
I
note of the fact that the respondent has agreed to
make payment for the full amount of the proposed civil penalty
assessments for the violations in question.
I note further
that the inspectors who issued the citations were present in
the court room, and petitioner's counsel asserted that he
discus
all of the violations with the inspecto~'s and that
they concurred in the proposed settlement dispositions advanced
by the
s.

Conclusion
Upon careful review and consideration
the pleadings, and
the information furnished by the parties in support of the proposed settlement of these.cases, I conclude and find that they
are reasonable and in the public interest and should be approved.
Accordingly, pursuant to 29 C.F.R. § 2700.30, the settlements
ARE APPROVED.
ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the settlement amounts shown above in satisfaction of the
violations in question within thirty (30) days of the date of
these
sions. Upon receipt of payment by the petitioner,
these proceedings are dismissed.

h.Ko~~

Admini

Law Judge

stribution:
Thomas Ao Grooms 1 Esq.v Office of the S
tor, U.S. Department
of
; 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215
ied Mail)
232 Second Street,

sville, K':'. 41240

David 0. Williamson and Gregory Lyons, E s., Gardner, Moss &
Rocovich, P.C., Suite 900, 213 S.
ferson Street, P.O.
Box 13606, Roanoke, VA 24035 (Certified
1)

S. Howes Johnson, Esq., Johnson & Johnson & Phillips, P.O.
Box 470, Paintsville, KY 41240 (
Mail)
/fb

1814

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

October 27, 1987

.
.:
.:
.

GREEN RIVER COAL CO., INC.
Contestant

.

v.

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

.
:
:

CONTEST PROCEEDINGS
Docket No. KENT 87-13-R
Citation No. 2216153; 9/18/86
Docket No. KENT 87-14-R
Citation No. 2216154; 9/18/86

.
.

Docket No. KENT 87-15-R
Citation No. 2216740; 9/18/87

:
:

Docket No. KENT 87-16-R
Order No. 2216023; 9/19/86

:

:

.

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

:
:

..
..

v.

GREEN RIVER COAL CO., INC.
Respondent

Green River No. 9 Mine
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 87-37
A. C. No. 15-13469-03581

..

Docket No •. KENT 87-67
A. C. No. 15-13469-03585

:

Green River No. 9 Mine

..

DECISION
Appearances:

Flem Gordon, Esq., Gordon, Gordon & Taylor,
OWensboro, Kentuckyu for the Respondent;
Mary Sue Rayr Esq.p Office of the Solicitoru U. So
Department of Labor, Nashville, Tennessee, for the
Petitioner.

Before~

Judge Weisberger

STATEMENT OF THE CASE

In these consolidated cases, the Operator (Respondent)
sought to challenge the following Citations/Orders issued to it
by the Secretary (Petitioner):
2216153 <alleged violation of
30 C.F.R. § 75.400), 2216154 (alleged violation of 30 c.F.R.

l.815

75.316), 2216023 (alleged violation of 30 C.F.R. § 75.0303),
2216024 <alleged violation of 30 C.F.R. § 75.307-1), 2216025
(alleged violation of 30 C.F.R. § 75.302-1), and 2216740 (alleged
violation of 30 C.F.R. § 75.0503). The Secretary sought civil
penalties for alleged violations by the Operator of the above
cited sections. On August 10, 1987, Respondent filed a Motion to
Dismiss Order No. 2216023. On August 10, 1987, Respondent filed
a Motion to Dismiss the Contest Pro9eeding and the Civil Penalty
Proceeding involving Order No. 2216154 en the ground that it
tendered payment to the Secretary of the proposed penalty on or
about August 6,. 1987.
··

§

Pursuant to notice, the remaining cases were scheduled for
hearing in Nashville, Tennessee, on August 11, 1987. At the hearing, Counsel for both Parties indicated that a settlement had been
reached in the Civil Penalty Proceeding, Docket No. KENT 87-67
(Citation Nos. 2216023, 2216024, and 2216025, (Docket No.
KENT 86-16-R)). At the hearing, after argument, the Motion to
Dismiss Order No. 216023 was denied. At the hearing, Counsel for
both Parties indicated, in essence, that an agreement had been
reached with regard to the relevant facts involved in Docket No.
KENT 87-15-R, and that the legal issues involved in this case would
be briefed. The remaining cases, KENT 87-37 and KENT 87-13-R, were
heard in Nashville, Tennessee, on August 11, 1987. James Franks
testified for Petitioner, and Grover Fischbeck testified for
Respondent. Respondent submitted its Posthearing Brief and
Memorandum of Authority on August 17, 1987, and Petitioner submitted its Post Trial Memorandum on August 31, 1987. On October 1,
1987r Petitioner filed three stipulations with regard to the
criteria in Section llO(i) of the Act.
On August 3lg l987v Respondent filed a Joint Motion to Approve
Settlement in Docket Noso KENT 87-67 and KENT 87-16-Ro Initially~
tne Secretary had proposed the following Civil Penalties for the
following Citationsg 2216023, $300; 2216024, $500, and 2216025,
$700. The Parties proposed a settlement of the following Citations
in the following amounts: 2216023, $100; 2216024, $700, and
2216025J S700o
I considered the representations and documentation
submitted in these cases, and I conclude that the proffered settle!uents are app~opriate under the criteria set forth in Section
llO(i) of the Acto
KENT 87-15-R (Citation Noo 2216740)
On September 18, 1986, Citation No. 2216740 was issued alleging a violation of 30 C.F.R. § 75.503 in that "a violation was
observed on the long-airdox roof bolter (extra bolter on No. 7
Unit) in that an opening in excess of .004 inch was present
between the main breaker box lid and breaker box. Also two bolts
were missing from the main on and off switch box."

i816

35 C.F.R. § 75.503 provides as follows:
The Operator of each coal mine shall maintain
in permissible condition all electric face
equipment required by Sections 75.500,
75.501, and 75.104 to be permissible which is
taken into or used inby the last open crosscut of any such mine.
The Parties stipulated that there was an opening of .004
inch on the electrical switch box of the bolter in question, and
that two bolts were missing from the on-off electrical switch box.
It was further stipulated, that at the time of the alleged violation, the bolter in question was not energized, and was located
outby the last open crosscut.
In its Post Trial Memorandum, the
Secretary has alleged that the roof bolter in question was operated as an alternate on the No. 7 Section, that it was available
for use at the face area if one of the face roof bolters was
inoperative, and that in fact it was intended to be used as a
backup for the No. 7 Section. However, the record does not contain any evidence to support these allegations of the Secretary.
Thus, inasmuch as there is no evidence which would tend to
establish that the Respondent intended to use the bolter in
question inby the last open crosscut, I conclude that a violation
of Section 75.503, supra, did not occur (c.f. Secretary v. Solar
Fuel Company 3 FMSHRC 1384 (June 1981). Hence the Notice of
Contest is allowed.
KENT 87-14-R.
On August lOu 1987v Respondent filed a Motion indicating, in
essence, that the violation which had been contested in
KENT 87-14-Ru had in fact occurred, and that Respondent has
tendered payment of the proposed penalty.
Accordingly, Docket
No. KENT 87-14-R is dismissed.

KENT 87-37 (KENT 87-13-R, Citation No. 2216153)
On September 18, 1986, MSHA Inspector James Franks issued
Citation No. 2216153, alleging a violation of 30 C.F.R. § 75.400,
and stating as follows~
Accumulations of loose coal and coal dust
(1/2 to 15 inches deep and averaging 15 ft.
wide) was present around the tail piece long
the belt and under the belt drive of the
No. 3 Unit conveyor belt, beginning at the
tail piece and extending outby approximately
800 feet.

1817

30 C.F.R § 75.400 provides as follows:
Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose
coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active workings, or on an electric
equipment therein.
MSHA Inspector James Franks testified that on June 18, 1986,
when he inspected Respondent's No. 9 Mine, he found coal accumulations that ranged from 1/2 to 15 inches in depth, along and under
the No. 3 Unit belt, from the tail piece to the belt drive.
Franks said, in essence, that the accumulations appeared to have
been in existence for several days, and that the physical appearance of the coal dust was not that of a recent spill. Preshift
mine examiner's reports indicate that on September 17, in an
examination, between 9:00 p.m. and 12:00 p.m., it was noted that
" ••. No. 3 Unit belt need to be cleaned." In an examination on
September 18, between S:oo- a.m. and 8:00 a.m., it was noted that
" ••• No. 3 Unit belt needs cleaned (sic) and dusted."

Franks testified that no one was in the area working on
cleaning the belt during his inspection. Grover Fischbeck,
Assistant Safety Director for Green River Coal Company, stated,
in essence, that he was not present during Franks' inspection,
but that the foreman and the man who traveled with Franks told
him that the belt was being cleaned prior to Franks' inspection.
The latter two personnel were not present at the hearing. Preshift examination records indicate that the area was cleaned
sometime during the 8:00 a.m. - 4:00 p.m. shift on September 18 0
19869 howeverv these records do not establish the time of day
during which the cleaning began.
·
The No. 3 Unit was idle on the shift during which Franks
conducted his inspection on September 18, 1986. However,
Fischbeck indicated it had run the preceding shift and the belt
wa:::; dirty,
(Tr.61).

Franks testified that both the fire suppression spray system
and the dust-control water spray system were inoperative at· the
time
the violation. (These conditions resulted in citations
for which civil penalties were paid by the Operator.) Franks
testi£ied that on September 18, the return air from No. 9 Mine
had .6 of methane gas, and that " ••• I have reports on at least
five methane ignitions at the mine." (Tr. 30). He stated that
in his opinion this indicates that the mine liberates gas.
Franks testified that this condition could cause or contribute to
a mine fire or explosion which would result in lost work days or
a restricted duty accident involving six men working on the No. 3
Unit.

1818

Based on the uncontradicted testimony of Franks, I find that
on September 18, 1986, there was an accumulation of loose coa.l
approximately 1/2 to 15 inches in depth from the tail piece to
the belt drive along and under the No. 3 Unit conveyor belt.
Section 75.400, supra, provides, in essence, that coal dust and
loose coal shall be cleaned up and not be permitted to accumulate
in "active workings." Essentially, it is Respondent's position
that because the unit was not in op~ration when Franks observed
the accumulation of coal, that the accumulation can not be considered to have occurred in a "active workings." In this
connection, it should be noted that 30 C.F.R. § 75.~(g)(4)
defines "active workings" as " ••• any place in a coal mine where
miners are normally required to work or travel;". Applying this
definition to the instant case, it is clear that the belt line at
the No. 3 Unit is a place where the miners are normally required
to work or travel. It thus is irrelevant that the unit was not
in operation when Franks made his inspection and issued the
citation in question. Thus, I conclude that Respondent did
violate Section 75.400, supra.
It is the position of Respondent, as asserted in its Post
Hearing Brief, that 11 • • • a violation has not occurred as when the
belt became dirty, no further mining actives were conducted in
the area." There was no testimony offered by either side as to
how long the coal accumulation in question had existed before it
was cleaned by Respondent. However, Respondent's mine examiner's
reports indicate that on September 17, between 9:00 p.m and
12:00 p.m., and again September 18, between 5:00 a.m and 8:00
a.m., it was noted that the belt in question had to be cleaned.
Further, it does not appear to be contested that the unit was in
operation the shift immediately proceeding the one in which
Franks made his inspection. Fischbeck, who was not present at
the No. 3 Unit when Franks made his inspection, testified that
the foreman and the man who traveled with Franks told him that
the belt was being cleaned prior to Franks' arrival at 10:30 in
the morning. Rather than rely upon the out of court statements
of two person who were not present to testify, I rely upon the
testimony of Franks as to what he actually observed. Hence, I
conclude, that when Franks made his inspection at 10:30 in the
morning on September 18, the coal accumulation at the No. 3 belt
line had not been cleaned and was not being cleaned. As such, I
conclude that violation of Section 75.400, supra, was as the
result of Respondentvs "unwarrantable failure."
(U. S. Steel
Corporation, 6 FMSHRC 1423 (June 1974)).

1819

I find, based upon the testimony of Franks, that there have
been at least five methane ignitions at the subject mine.
In
addition, I adopt Franks' uncontradicted testimony that both the
£ire suppression spray system and the dust-control water spray
system were inoperative at time of the violation. I further
find, that the accumulation of coal up to 15 inches in depth
under the belt line, did contribute to the possibility of a mine
fire or explosion, especially taking into account the above
factors.
I adopt the opinion of Franks ··that such a fire or
explosion would result in lost work days or restric~ed duty
involving six men working on the No. 3 shift. In this
connection, I find, based on Respondent's mine examiner's
reports, and the testimony of Fishbeck, that the unit in question
had been in operation the shift prior to Franks' inspection and
that the belt area had an accumulation of loose coal or coal dust.
As such, I find that the violation herein was significant and
substantial (see Mathies Coal Company 6 FMSHRC 1 (January 1984)).
The Parties have stipulated that the total tonnage at the
Green River No. 9 Mine is 2,440,390 tons for the year of 1986. I
thus find that the Operator had a large sized business. Documentary evidence indicates that the condition giving rise to the
violation herein was cleaned up in the shift in which the violation was first noted. The Order itself was terminated at 9:15 a.m.
on September 19, 1986, by Franks who noted that the accumulation of
loose coal and coal dust had been cleaned up and the area was rock
dusted.
Accordingly, I find good faith by the Operator in
attempting to achieve compliance. Due to the likelihood of an
explosion, and taking into account the history of methane ignitions
at the mine as well as the fact that the suppression spray system
and the dust-control water spray system were inoperative, I find
that the gravity of the violation to be high.
I also find that
Respondentgs negligence was high as, on two previous shifts, it was
noted by examiners that the coal in question had to be cleanedo
Accordingly, taking into account all th~ factors in Section llOCi)
of the Act, I find that the proposed penalty of $700 is appropriate.
ORDER
It is ORDERED that Docket Nos. KENT 87-13-R and 87-14-R be
DISMISSED.
It is ORDERED that the Notice of Contest, KENT 87-15-R
be allowed, and that Citation No. 2216740 be VACA'rED.
It is
further ORDERED that Ordar No. 2216023 be modified to a Section
104{a) Citation. As modified the Citation is afficmed.
It is
further ORDERED that the Motion to Approve Settlement in Docket No.
KEN·r 87-67
GRAN'rED, and it is ORDERED that Docket No.
KENT 87-16-R be DISMISSED.

is

1820

It is further ORDERED that the Operator pay the sum of
$2,200, within 30 days of this Decision, as civil penalties for
the violations found herein.

~berg

ex

Administrative Law Judge

Distribution:
Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica Street,
P. o. Box 390, Owensboro, KY 42302-0390 (Certified Mail)
Mary Sue Ray, Esq., Office of the Solicitor, U. s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
dcp

1821

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

OCT 2·s 1987
ARNOLD SHARP,

.

Complainant

v.

DISCRIMINATION PROCEEDING
Dooket No. KENT 86-149-D
BARB CD 86-49

BIG ELK CREEK COAL CO., INC.,
Respondent

FINAL ORDER
Appearances:

Leon L. Hollon, Esq., Hazard, Kentucky, for the
Complainant;
Stephen c. Cawood, Esq., Pineville, Kentucky,
for the Respondent.

Before:

Judge Fauver

Counsel for Complainant has moved for an Order awarding an
attorney's fee, and Respondent has no objection to the proposed
fee.
WHEREFORE IT IS ORDERED that:

1. The Motion for an attorney's fee is GRANTED, and
Respondent shall pay the attorney's fee of $1,725.00 to Counsel
for Complainant within 15 days from the date of this Order.
2o The Decision of July 22u 1987u and the Supplemental
Decision of September 15u 1987, along with this Order are hereby
made FINAL and constitute my final disposition of this proceeding
under section 113Cd)(l) of the Federal Mine Safety and Health Act
of 1977v 30 U.S.Ce § 801 et~·

tU~~~Ve./L
William Fauver
Administrative Law Judge
Distribution:
Leon L. Hollon, Esq., P.
(Certified Mail)

o. Drawer 779, Hazard, KY 41701

Stephen c. Cawood, Esq., Cawood & Fowles, P.
Pineville, KY 40977 (Certified Mail)
dcp

1822

o. Drawer 280,

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

22041

OCT 2 91987
DISCRIMINATION PROCEEDING

ALFRED DANIELS,
Complainant

Docket No. LAKE 87-46-DM

v.
SOUTHWESTERN POR'rLAND CEMEN·r
COMPANY,
Respondent
DECISION
Appearances:

Before:

Mr. William H. Kojola, Kansas City, Kansas, for
Complainant; John J. Heron, Esq., Dayton, Ohio,
for Respondent.

Judge Fauver

Complainant brought this proceeding under section 105(c) of
the Federal Mine Safety and Health Act of 1987, 30 C.F.R. § 801
et~., contending that he was suspended without pay because of
safety complaints made to Respondent and to the Mine Safety and
Health Administration, United States Department of Labor.
Respondent contends that he was suspended for insubordination,
and not because of safety complaints.
Based upon the hearing evidence and the record as a whole, I
find that a preponderance of the substantial, reliable, and
probative evidence establishes the following:
FINDINGS OF FACT

lo At the time of the hearing, Daniels was a general
equipment operator for Southwestern. He had been employed by
Southwestern for nine years.
2o
At all relevant times, Daniels has been a member of
Local Lodge D357, United Cement, Time, Gypsum and Allied Workers
Union. The collective bargaining agreement between Southwestern
and Local Lodge D357 expired on September 1, 1985. At that time,
Southwester~ implemented the terms and conditions of its final
offer.

3. Southwestern, at all relevant times, has maintained
published Plant Rules designed to promote safety and efficiency.

1823

Category I, Rule No. 2 of the Rules provides that insubordination
is a dischargeable offense.
4. At some point after September 1, 1985, Daniels was
appointed by the president of Local D357 "to turn in safety
complaints" in his work area. Daniels was assigned to the North
Annex area of Southwestern's plant "on and off" for about a year
before his suspension on October 14, 19~6.
5. Employee safety complaints and safety suggestions at
Southwestern are normally submitted to Ted Weatherhead, Safety
Consultant. Weatherhead investigates the complaint or suggestion
and, if he deems it appropriate, he prepares a work order for
corrective action. The necessary work to remedy the complaint or
suggestion is then completed and the work order returned to
Weatherhead with a notation that the work has Deen completed. If
known, the initiating emplo.y~e is then notified that the W'ork has
been completed.
6. The safety suggestion or complaint forms, known as
safety inspection reports, may be filed with the Union or Company
Safety Committee, or with the respective foreman. The employee
does not have to include his or her name on the report.
Southwestern's program is designed to encourage safety
suggestions or complaints.
7. Since September 1, 1985, approximately 100 safety
complaints have been filed at Southwestern's Fairborn plant.
Daniels has filed more complaints than any other employee, but
numerous other employees have also filed safety complaints and
suggestions. Safety complaints are not kept in an employee's
personnel file.
8. Many safety complaints by Daniels were responded to and
remedied by Southwestern. In August 1986, eight work orders
initiated by Daniels were completed by Southwestern.
9.

At least 43 additional safety work orders were initiated

by 19 other employees of Southwestern between June and September
1986, including 14 work orders initiated by David Gullett,

Vice-President of Local D357. In each caseF the work requested
was completed by Southwestern.
10. There has been no contention or evidence that any other
employee of Southwestern has been disciplined or otherwise
discriminated against because of the filing of safety complaints
or suggestions.
11. Although a new collective bargaining agreement has not
been reached, Southwestern and Local 0357 have established a

1824

Joint Safety and Health Committee for the purpose of jointly
considering, inspecting, investigating and reviewing health and
safety conditions and practices. The Committee also
investigates accidents and recommends corrective measures to
eliminate unhealthful or unsafe conditions. The Committee meets
at least once a month.
12. Daniels has contacted OSHA or MSHA several times
concerning perceived safety problems. !n August of 1986, Daniels
made a safety complaint to OSHA regarding alleged hazards at the
North Annex. Daniels' name does not appear on the complaint
filed with OSHA.
13. OSHA transferred the above complaint to MSHA. MSHA
inspector Tom Kenney conducted an inspection of Southwestern's
facility on September 8-9, 1986. Four section 104(a) citations
were issued during that inspection.
14. On or before December 4, 1986, 14 employees of
Southwestern filed a wcitten complaint with MSHA requesting an
inspection of Southwestern because of alleged unsafe and
hazardous conditions. A copy of this complaint was sent to
Gary Leasure, Director of Industrial Relations for Southwestern.
A citation was issued by MSHA on December 4, 1986. On December
11, 1986, a Company-Union Safety Committee meeting was held to
discuss and attempt to resolve that citation. None of the
employees signing that complaint were disciplined because of
filing the complaint.
15. For several months before his suspension, Daniels had
wor
in the North Mill area of the plant. On October 13, 1986,
Danials returned to the North Annex.
Glenn Parker was the
foreman in charge of cleaning the silos in the North Annex.
Parker had previously worked as a foreman at Southwestern's
Odessa, Texas facility.
On July 8, 1986, he began working as a
shift supervisor in the North Annex, and became the foreman in
charge of cleaning the silos in early September.
Daniels had not
worked for Parker before October 13, 1986, and as of that date
Parker was unaware of any
ety complaints filed by Daniels.
160 Between 7~00 and 7:30 a.m. on October 13, 1986, Parker
assigned Daniels to work with the maintenance crew on the screw
conveyor on the north side of the silos. Daniels accepted this
assignment without questioning Parker's status as his foreman.
Later in the morning, Parker began to discuss an absenteeism
problem with a temporary employee, Steve Marshall.
Daniels
interrupted and erroneously informed Marshall that Marshall did
not have anything to worry about and that temporary employees
were not subject to the Company's point system for absenteeism.

1825

17. Later in the morning, Parker again talked with Marshall
regarding Marshall's absenteeism. Once again, Daniels intervened
and incorrectly informed the employee that the point system did
not apply to temporary employees. At this time, Marshall left
the area and returned to his job. Parker then approached Daniels
and inf armed him that he wanted to work together with Daniels and
"get off to a good start." He did this because Daniels had
interfered with Parker's supervising of Marshall. Daniels then
told Parker:
A. [By Parker] He let me know that he didn't have to
cooperate with me; that he didn't have to work with me;
that he was assigned to work for me, not with me.
I told him we need to work together, because it will
work better that way.

Q.

Did he use any profanity to you?

A.

Yes, he did.

Q.

What did he way?

A. He told me he was an asshole and he was a mother-fucker,
and he was all this stuff, and that he didn't have to work
with me; and that he would not cooperate with me, and he
would fuck with me as much as he could.

Q.

What did you do then?

A.
I tried to explain the problem that we had and get it
straightened outv and I wanted to work things out where we
could work together and wouldn't have to be at each other's
throat all the time.
To no availv he wasn't accepting ito He brought it up
at that time that he didn't kn:JW who his supervisor waso We
talked rather loudly I would say.
(Tr. 13lr 132.]

180 The only other individual present at the time of this
conversation was Tom Anderson, who is a bulk loader at
Southwestern and a union member. Anderson was on his way to the
pump room when he ran into Parker and Daniels. Anderson's
testimony and recollection of the conversation between Parker and
Daniels is entirely consistent with that of Parker.
19. After this conversation, Parker approached Roy Garman,
with Daniels, concerning Daniels's allegation that he did not

1826

know who his supervisor was. Garman, who was foreman of the pack
house and Daniels' previous supervisor, informed Daniels that
Daniels was working for Parker.
20. At no time during his heated conversation with Parker
did Daniels raise a safety issue with Parker. Parker had no
knowledge of Daniels' prior safety complaints. Shortly after
their exchange, Daniels threatened Parker with filing an unfair
labor practice charge because temporary· employees were performing
Daniels' job of pumping cement. Parker indicated that he would
check on this matter.
21. Parker then met briefly with Gary Leasure, Director of
Industrial Relations, and Ted Stute, Plant Manager. Stute told
Parker to return Daniels to his job of pumping cement, Parker did
so. No unfair labor practice charge was filed about this issue.
22. During his meeting with Leasure and Stute, ParKer told
Leasure and Stute about Daniels' interference with Parker's
supervision of Marshall and Daniels' abusive language towards
Parker. Because Leasure and Stute were going to a meeting,
Leasure told Parker that they would discuss the matter later that
day. Later that day, Leasure asked Parker to think about the
events overnight and meet with Leasure the first thing in the
morning, on October 14, 1986.
23. At 8:00 a.m. on October 14, 1986, Parker met with
Leasure and Garman. Parker described in detail what Daniels had
said and done on October 13th. At that time, Leasure prepared a
typed statement of the events as described by Parker. Parker
indicated that he thought disciplinary action should be taken in
accordance with plant rules. Following Parker's comments and
Leasure 1 s review of Daniels 1 personnel file, Leasure made the
decision to suspend Daniels pending discharge.

24. On October 14, 1986, at about 9:30 a.m., Daniels was
suspended pending discharge pursuant to Category I, Rule No. 2
Southwestern°s Plant Rules specifying insubordination as a
dischargeable offense and pursuant to the mana3e.ment rights
clause
the implemented contract authorizing discipline for
just cause.
25. At the time the decision was made, on October 14, 1986,
to suspend Daniels pending discharge, Leasure and Packer were
unaware that MSHA 1 s inspection of Southwestern in September was
the result of an employee complaint. They were also unaware of
any prior safety complaints by Daniels.
26. At the time Dani s was informed of his suspension, he
was given a disciplinary form setting forth the reason for the

1827

discipline. Attached was a typed statement prepared by Leasure,
which had been signed by Parker and Anderson. Under "Employee
Remarks" Daniels wrote "FYF0, 11 known by employees to mean "fuck
your final offer."
27. At the time he was informed of his suspension, Daniels
told to leave company property, but he proceeded to Leasure's
office, attempting to use the telephone and creating a disruption.
FL:: then slammed the phone on Parker's finger. No disciplinary
action was taken as a result of this conduct.
wa~

28. On October 15, 1986, Leasure and Stute met with Daniels
and the Union Committee concerning Daniels' suspension. Daniels
was given the opportunity to present his side of the story.
Leasure subsequently interviewed two witnesses identified by
Daniels and the Union. These interviews were witnessed by Union
representative R. Lykins.
29. At no time du~ing Leasure's meetings with Daniels on
October 14 and 15, 1986, did Daniels make any reference to safety
complaints, a safety inspection, or MSHA inspection. Leasure,
who commenced employment at Southwestern on September 15, 1986,
was unaware of any safety complaints by Daniels until this matter
was first raised by the Onion in the meeting on October 15, 1986.
30. On October 22, 1987, Leasure notified Daniels and
James Cantrell, the president of Local 0357, that Daniels would
be given a 60-day disciplinary layoff as a result of Daniels'
violation of the Plant Rules and pursuant to the management
rights clause of the implemented contract. Leasure indicated
that threats to and intimidation of a foreman would not be
tolerated and that Daniels had been previously warned of his poor
attitudeo The 60-day layoff was the recommendation of Leasure,
which was accepted by Plant Manager Stute and Division
Vice-President Strautman.

316 LeasureYs decision to suspend Daniels for 60 days was
based on his finding
insubordination -- a plant rule violation
and dischargeable offense -- and Danielsu prior disciplinary
record as contained in Danielsu personnel file.
320 Leasure observed the following items in Danielsv
personnel file when he reviewed the file before deciding to
suspend him pending discharge:
(a) a June 24, 1986 memorandum from w. H. Strautman,
Division Vice-President (Tr. 268), documenting an
instance in which Strautman and a potential buyer,
while touring the North Annex, found Daniels eating his
lunch outside the mill building. When Strautman told

1828

Daniels that he was not permitted to leave his post and
should eat inside where he could observe the control
panels, Daniels became irritated and stated that he
didn't want to eat there. After Strautman again
reminded Daniels of his job responsibility, Daniels
stated, "It won't do any good; this place is a disaster
and never will be anything else." The buyer noted
Daniels' "very poor attitude. 11 Strautman indicated
that this incident was typical of the attitude
displayed by Daniels during Strautman's visits· to the
North Annex during the past month (R-22).
(b)
a July 7, 1986 memorandum from Plant Manager Stute to
Ken Herr regarding a July 1, 1986, meeting of Stute, Daniels
and Dave Gullett regarding Daniels' poor attitude. Daniels
was informed that the Company needed his cooperation and
would not put up with a poor attitude in the future. Stute
also indicated-that Daniels would be working with a new
foreman and that Stute wanted Daniels to get off to a good
start (R-23) •
(c) an August 18, 1986 memorandum from Lloyd Steinkamp,
Daniels' supervisor at the time, detailing Daniels' refusal
to obey a work order by Steinkamp on that date. Daniels
responded to the order "do what you have to." Daniels was
sent home 1 for the day as discipline for this misconduct (Tr.
224, 239; R-17).

(d) an August 19, 1986 memorandum from Lloyd Steinkamp
regarding an altercation between Daniels and another
employee (R-18)o
33. On October 27, 1986, Daniels filed a charge of
discrimination with MSHA • On February 18, 1987, following its
investigation of the charge, MSHA found no violation of section
105(c) of the Acto
34. On December 1, 1986, Daniels filed an unrair labor
practice charge with the National Labor Relations Board alleging
that his suspension was the result of his union activities and
the filing
safety complaints. On January 5, 1987, following
its investigation of the charge, the NLRB dismissed the charge.

1829

This dismissal was sustained upon Daniels' appeal to the Office
of the General Counsel, NLRB.
DISCUSSION WITH FURTHER FINDINGS
The issue in this proceeding is whether Daniels was
discriminatorily suspended, contrary to the provisions of section
105(c) of the Act. _ _!/
The burdens and allocations of proof under section 105(c)
are now well-settled. A complainant bears the initial burden of
establishing a prima facie case of discrimination. In this
regard, he bears the burden of production and proof in
establishing that Cl} he engaged in protected activity and (2)
the adverse action was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797-2799 (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 Cl981). See also: Hall v. Clinchfield
coal Co., 8 FMSHRC 1624, 1628 (1986)-::---T'he operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity. If the operator cannot rebut the prima facie
case in this manner, it may nevertheless affirmatively defend by
provin3 that it also was motivated by the miner's unprotected
activity and would have taken the adverse action in any event for
the unprotected activity alone. Smith v.Reco, Inc., 9 FMSHRC
992, 994 (1987); Pasula, 2 FMSHRC at 2799-2800; Robinette,

!I

Section l05(c) providesf in pertinent part:
(c)(l) 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 "
o
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 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.
0

1830

3 FMSHRC at 817-18. See also: Boich v. FMSHRC, 719 F.2d 194,
195-96 (6th Cir. 1983-)-.- The ultimate burden of persuasion does
not shift from the complainant. Robinette, 3 FMSHRC at 818,
n.20; Boich, 719 F.2d at 195-96. Allegations of general
unfairness, or inequities in the employment are not sufficient
for relief under the Act. Alexander v. Freeport Gold Co., 9
FMSHRC 1112, 1121 (1987) (Judge's decision).
As noted above, an essential element of Daniels' prima facie
case is that his suspension was motivated in part by his safety
complaints. Pasula; Robinette. Stated otherwise, a complainant
must initially establish some nexus between his protected
activity and the adverse action taken against him. A failure to
establish such nexus necessarily results in the dismissal of a
complaint. See ~' Hall, 8 FMSHRC at 1630; Cox v. Parnmlid Coal
Co., 9 FMSHRC 435, 524-25 (1987) (ALJ), review denied (April
1987); Holcomb v. Colony Bay Coal Co., 8 FMSHRC 1077, 1080-81
(1986) (ALJ); Hutchinson v. Ida Carbon Coal Co., 7 FMSHRC 2247,
2251 (1985) (ALJ).
In analyzing an operator's motivation with respect to an
adverse personnel decision, the Commission has noted that "the
operator's knowledge of the miner's activity is probably the
single most important aspect of a circumstantial case."
Secretary ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2510 (1981), rev'd on other grounds sub nom., Donovan ex rel.
Chacon v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). In
light of the basic underlying issue of motivation, knowledge by
the relevant decision-makers of the miner's protected activity is
crucialo
Complainant has not shown by a preponderance of the evidence
that his suspension was motivated in any part by protected
activity -- his safety complaints to the Company or to MSHA.
Rather, Respondent has shown by a preponderance of the evidence
that Daniels' suspension was motivated only by his insubordinate
conduct towards his supervisor, Glenn Parker, and Daniels' prior
disciplinary record.
In this regard, neither of the two
individuals primarily responsible for the suspension, Parker and
Gary Leasure, was aware of Daniels 1 prior safety complaints to
the Company or to MSHA when Daniels was suspended pending
discharge.
Southwestern has demonstrated by a preponderance of the
credible evidence that it would have taken the adverse action
against Daniels for the unprotected activity alone -- i.e., for
Daniels' viol::ition of Southwestern's Plant Rules and management
prerogative clause forbidding insubordination and protecting the
operator's right to operate its business.

1831

In the Hall case, supra, the Commission affirmed the
Administrative Law Judge's denial of a section lOSCc) claim based
on the fact that there had been no showing that the adverse
actions against the miner were motivated in any part by the
miner's protected activity and, accordingly, no establishment of
a prima facie case. The Commission noted that:
With respect to Hall's discharge, the judge found
that Pendergast [Manager of Industrial Relations] had
no knowledge of Hall's protected activity [safety
concerns] at the time he prepared the notice of
discharge and that he had not consulted with other mine
officials prior to terminating Hall [citation omitted]

[8 FMSHRC at 1629.]
Similarly, in Cantrell v. Gilbert Industrial, 4 FMSHRC 1164
(1982), Judge Broderick held that the complainant failed to show
by a preponderance of the evidence that she was laid off due to
her complaint to MSHA (which resulted in the issuance of a
citation to the operator). Judge Broderick stated, in pertinent
part~

I accept the evidence that the persons responsible for
her layoff on May 6, 1981, were unaware of the report
to MSHA, the inspection, and the subsequent citation.
There is not evidence linking any adverse action
against Complainant to her call to MSHA officials.
Thusv Complainant has failed to establish the basic
requirement for liability under 105(c)~ a nexus
between the adverse action and protected activity under
the Mine Act [citations omitted].
[4 FMSHRC at 1166.]
In Johnson v. Eastern Associated Coal Corp., 4 FMSHRC 398,
399 (1982), Judge Melick likewise dismissad the§ 105(c)
complaint where there was not sufficient evidence to prove that
the individual who made the decision to discharge the complainant
had any knowledge of the complainant's saf8ty complaints. See
also~
Paugh Vo Mettiki Coal Corp., 8 FMSHRC 829, 880-81 (1987)
(no evidence that safety complaints we~e discussed in meeting
where decision made to discharge miner); Cox v. Pammlid Coal Co.,
supra, at 519-20 (company president had no knowledge of
complainant's journal of allegedly unsafe conditions and
violations of law}; Everett v. Industrial Garnet Extractives, 6
FMSHRC 998, 1001 (1984) (no evidence that foreman who discharged
complainant had knowledge of complainant's affidavit alleging
safety violations).

1832

In the case at bar, the evidence demonstrates that Glenn
Parker, Daniels' immediate supervisor on October 13, 1986, and
Gary Leasure, Director of Industrial Relations, were the
individuals ultimately responsible for the 60-day suspension of
Daniels. On October 13, 1986, Parker notified Leasure of
Daniels' abusive language and insubordinate conduct toward Parker
earlier that day.
CTr. 1162-63, 165-66.) On the morning of
October 14, 1986, Parker detailed Daniels' actions to Leasure and
indicated that he believed disciplinary action should be taken in
accordance with the Plant Rules.
(Tr. 172, 251.) After Leasure
and Parker discussed the matter and Leasure reviewed Daniels'
personnel file, the decision was made to suspend Daniels pending
discharge.
(Tr. 251.) At approximately 9:30 a.m., on October
14, 1986, Daniels was notified of his suspension pending
discharge.
(Tr. 19, 251; R-19.) Leasure subsequently
recommended the decision not to discharge Daniels, but to issue a
60-day suspension.
(Tr. 266-67, 316.) A critical point is that,
at the time the decision was made to suspend Daniels pending
discharge, neither Parker nor Leasure was aware of Daniels' prior
safety complaints to the Company or to MSHA.
Parker commenced employment at Southwestern's Fairborn
facility on July 8, 1986. Prior to that time, he had worked as a
union laborer and foreman at Southwestern Odessa, Texas facility.
On July 8, 1986, he began as Shift Supervisor of the North Annex;
at the beginning of September 1986, he became the foreman in
charge of cleaning the silos in the North Annex. Parker had
worked with Daniels on only one occasion before October 13, 1986,
when their respective shifts overlapped.
Parker indicated that
there were no problems at that time. Most significantly, as of
October 13 and 14v 1986u Parker was unaware of any safety
complaints by Daniels.
Daniels 0 previous supervisor, Lloyd
Steinkamp, had not mentioned any safety problems with Daniels.
Steinkamp had commenced employment with Southwestern in June
1986? and had supervised Daniels from July 1986 to October 1986.
Although Parker had heard that other supervisors had had problems
9
with Dani
attitude and poor cooperation, Parker had not been
informed of any safety grievances or safety complaints by Daniels.
Moreover, although he was aware of MSHA's inspection in September
1986, Parker had no knowledge that the inspection was initiated
by a complainto
In fact, Parker had no knowledge of Daniels'
safety complaints even as of October 22 when the 60-day lay-off
was issued.
Gary Leasure, the individual ultimately responsible for the
60-day suspension of Daniels, had no knowledge of any safety
complaints by Daniels until after Leasure suspended Daniels
pending discharge.

1833

Leasure commenced his employment with Southwestern as
Director of Industrial Relations on September 15, 1986 -- less
than one month before Daniels' suspension. As noted, Leasure
met with Parker on the morning of October 14, 1986, regarding
Parker's encounter with Daniels the previous day. Parker
informed Leasure in detail what had occurred between him and
Daniels and recommended disciplinary action against Daniels. At
about 9:30 a.m., on October 14, following Parker's detailed
explanation of the events of October 13·and Leasure's review of
Daniels' personnel file, Leasure suspended him pend-ing discharge
for violation of Category 1, Rule No. 2 of the Plant Rules and
the management prerogative clause.
(Tr. 19, 251; R-19. )
Not until the following day, October 15, when Leasure met
with Daniels and the Union concerning Daniels' suspension pending
discharge, did Daniels' prior safety complaints arise. Until
that time, Leasure was unaware of any safety complaints or
grievances by Daniels, and was unaware of MSHA's inspection on
September 8 and 9.
Although insubordination is a dischargeable offense under
Southwestern's Plant Rules, Leasure recommended only that Daniels
be suspended for 60 days. This recommendation was accepted by
the Plant Manager and Division Vice-President. Thus, even after
the Union informed Leasure of Daniels' prior safety complaints,
Leasure recommended discipline less severe than that available
under the Plant Rules. This conduct does not indicate
discrimination.
Another sign icant factor to be considered in determining
whether an adverse employment decision has been motivated in any
part by protected activity is the operator's hostility -- or lack
thereof -- toward the protected activity. Chacon, 3 FMSHRC at
2511~ Haro v. Magma Copper Co., 4 FMSHRC 1948, 1953 (1982)
(Judge's decision), review denied (January 1983).
In Harmon v" Consolidation Coal Co., 9 FMSHRC 549 (1987),
the Commission Judge noted, in the course of concluding that the
complainant had
iled to establiah a nrima facie case, that
management had attended to the complainant's safety complaints.
Id. at 573. Likewise, in Brazell v. FMSHRC, 716 F.2d 902 (6th
r. 1983) (unpublished decision, but reproduced at 3 MSHC 1036
(BNA)), the Sixth Circuit, in affirming that the miner had not
established a prima facie case of discrimination, noted, inter
alia, that the company acted upon the miner's complaint rather
than reacting with hostility.
There is abundant evidence that Southwestern has an active
safety program designed to encourage safety complaints and

1834

suggestions and a responsive and cooperative attitude toward them
rather than a hostile or retaliatory attitude.
David Gullett, Vice-President and walkaround representative
of Local D357, called as a witness by Daniels, indicated that he
was unaware of any other employees of Southwestern who have been
disciplined or in any way discriminated against because of the
filing of safety complaints or grievances. Gullett himself
initiated 14 safety work orders in June·and July of 1986 (R-9B,
R-9C}. Of record are 43 work orders initiated by employees of
Southwestern in June through September 1986. In each instance,
the work order was completed (R-9A, R-9B, R-9C). Also of record
are many other safety grievances initiated by employees other
than Daniels. There has been no allegation of any retaliatory or
adverse action toward any of these employees.
A written complaint to MSHA was signed by 14 employees of
Southwestern CR-6). A copy was delivered to Gary Leasure. There
has been no adverse action taken against any of the employees
signing this complaint as a result of its filing.
As noted, as a matter of practice safety complaints and
suggestions are submitted to Southwestern's Safety Consultant,
who investigates the complaint or suggestion and prepares an
appropriate work order. When corrective work is completed the
work order is returned to the Safety Consultant. The safety
suggestion slips may be turned into the Union or Company Safety
Committee, or to the employee's foreman.
The employee does not
have to include his or her name on the slip. Southwestern's
program is designed to encourage safety suggestions and
complaints and to take effective action to improve safety.
Southwestern and Local D357 have established a Joint Safety
and Health Committee for the purpose of jointly considering,
inspecting, investigating, and reviewing health and safety
conditions and practices and investigating accidents, as well as
making recommendations to eliminate unhealthful or unsafe
conditions. This Committee meets at least once a month and upon
Lequest by either the Union or the Company.
I find that there is no evidence that Respondent had a
hostile attitude toward the pcotected activity but, on the
contrary, encouraged safety suggestions or complaints and showed
a positive attitude toward them.
Apart
om the question of whether or not Complainant made a
prima facie case of discrimination (and I hold that he did not),
I conclude that Southwestern affirmatively proved that it would
have suspended him for insubordin~tion alone even if he had never
made a safety complaint.

1835

The credible evidence shows that on October 13, 1986,
Daniels on two occasions interrupted his supervisor's (Parker)
attempts to counsel another employee concerning that employee's
absenteeism, and Daniels belligerently contradicted Parker's
statements to that employee and interfered with his supervisory
duties.
(Tr. 128, 130.) When his supervisor took Daniels aside
and tried to counsel him to cooperate with him, to avoid
employment problems, Daniels belligerently assaulted him verbally
in defiant, profane and clearly insubordinate language. During
the summer before this verbal assault, Daniels (1) was away from
his post without authorization and informed the Division
Vice-President, in the presence of a potential customer, that
"this place is a disaster ~nd never will be anything else"
(R-22); (2) received a warning regarding his poor attitude
(R-23); (3) was docked four hours' pay and sent home for his
refusal to obey an order from his supervisor (Tr. 224, 239;
R-17); and (4) was in an altercation with another employee (R-18).
I credit the testimony of Southwestern's Director of
Industrial Relations that Daniels' 60-day suspension was
motivated solely by Daniels' insubordination and his prior
misconduct as reflected in Daniels' personnel file.
(Tr. 266-67.)
As noted in an October 22, 1986, letter from Leasure to the
president of Local D357, "Daniels blatantly interfered with this
right of the Company on October 13, 1986 by making repeated
threats to foreman Parker and by trying to intimidate and
undermine such foreman to a point of ineffectiveness. Such
'assaults' and agonistic [sic] behavior on management or any
other employee cannot and will not be tolerated."
(R-21.)
CONCLUSION OF LAW
lo

The Commission has jurisdiction in this proceeding.

2o Complainant has failed to meet his burden of proving a
violation of § 105(c) of the Acto
ORDER
WHEREFORE IT IS ORDERED that this proceeding is DISMISSED.

cJ~
f ww~e-i_
William Fauver
Administrative Law Judge

1836

Distribution:
William H. Kojola, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers & Helpers, New
Brotherhood Building, Kansas City, KS 66101 (Certified Mail)
John J. Heron, Esq., Porter, Wright, Morris & Arthur, 2100 First
National Bank Bldg., P.O. Box 1805, Dayton, OH 45401 (Certified
Mail)
.
slk

1837

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

OCT 301987
DISCRIMINATION PROCEEDING

THOMAS W. GODFREY,
Complainant

v.

Docket No. KENT 87-92-D

BIG ELK CREEK COAL COMPANY,
Respondent

BARB CD 87-08

ORDER OF DISMISSAL
In a conference call on October 26, 1987, between Complainant,
Counsel for Respondent, and the undersigned, the Parties indicated
that the above case has been fully settled and that the Respondent
is to pay Complainant $25,000 as settlement of his claim.
Accordingly, the above case is DISMISSED.

~~~

Avram Weisberger
Administrative Law Judge

Distribution~

Thomas Wo Godfreyu 1867 White Marsh Roadu Suffolku VA 23434
(Express Mail)
Stephen C. Cawood, Esq., Cawood & Fowles, 206 Kentucky Avenue,
Pinevilleu KY 40977 (Express Mail)

dcp

1838

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lA W JUDGES
333 W COLFAX AVENUE. 5UITE .400
DENVER, COLORADO 80204

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

OCT 301987

CIVIL PENALTY PROCEEDING

v.
PIONEER SAND & GRAVEL COMPANY,
Respondent

:

Docket No. WEST 87-28-M
A.C. No. 42-01661-05504

:

Pioneer Sand & Gravel Pit

:

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Ronald Savage, Vice President, Pioneer Sand
and Gravel Company,
pro se.

Before:

Judge Cetti
Statement of the Case

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., ("Mine
Act"). The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges the operator of an open pit mine
with violating safety standard 30 C.F.R. § 56.11001 which requires that safe means of access must be provided and maintained
to all working places. The Secretary charges that safe access
was not provided to the work place under the primary trap where a
laborer was cleaning up spilled materials while front end loaders
were dumping material into the trap.
On July 29 and 3Dv Mr. James SkinnerQ a MSHA mine inspectorQ
inspected the Pioneer Sand and Gravel Pit.
~s the result of that
inspection he cited the operator for allegedly violating four
mandatory safety standards.
The Secretary of Labor thereafter initiated this proceeding
with the filing of a petition for assessment of a civil penalty
pursuant to section llOCa) of the Mine Act.
Each citation
number, date issued, standard alegedly violated, and the Secretary's proposed penalty is as follows:
Citation No.
2644264
2644265
2644266
2644267

30 C.F.R. §

Date
7/30/86
7/30/86
7/30/86
7/30/86

56.12005
56.12013
56 .11001
56.9006

1839

Proposed
Penalty
$ 74.00
74.00
400.00
20.00

Pioneer Sand & Gravel Company filed a timely answer
contesting the existence of all the violations and the amount of
the related proposed civil penalties. After notice to the
parties, an evidentiary hearing on the merits was held before me
on June 11, 1987, at Salt Lake City, Utah.
At the hearing respondent Pioneer Sand and Gravel Company
withdrew its notice of contest of three of the four citations and
the related proposed penalties so as to leave in contest Citation
No. 2644266 which alleges a violation of § 56.1101 and its
related proposed civil penalty.
Issues
1. Whether or not there was a failure to provide safe
access to a work place as required by 30 C.F.R. 56~11001.
2. If a violation of 30 C.F.R. § 56.11001 is found should
the violation be classified as "significant and substantial."
3.

The amount of the penalties.
Stipulations

The parties entered into stipulations as follows:
1. Pioneer Sand and Gravel Company, respondent, operates
the sand and gravel pit designated "Pioneer Sand and Gravel
Pit" located near Kearns, Utah.
2. The respondent in its operation of the Pioneer Sand and
Gravel Pit is subject to the provisions of the Mine Act.
3. As the Administrative Law Judge assigned by the Federal
Mine Safety and Health Review Commission to hear this case, I
have jurisdiction to hear and decide this case.
4. Respondent is a small operator employing approximately
12 employees.
5. Respondent exercised good faith in the abatement of the
violations.
6. The proposed penalities would not affect the ability of
respondent to continue in operation.
7. During the two year period ending June 29, 1986,
respondent had a total of two violations which had an assessed
penalty of $20.00 each.
Citation No. 2644266
The citation alleges:

1840

One of the plant operators was cleaning up material under
and near the primary trap while two (2) front-end loaders
were dumping into the trap intake. The employee was subjected to being hit by large falling rocks. Some of the
rocks were 12 inches in diameter. The employee could be
fatally injured if hit by one of these rocks. The above
situation did not provide the employee with a safe access.
The Regulation
30 C.F.R. § 56.11001 provides as follows:
Safe means of access shall be provided and
maintained to all working places.
Review of Evidence
and Discussion
The Pioneer Sand & Gravel Pit has a primary crushing
operation and a subsequent wash plant. The plant produces sand
and aggregate up to two inches in size and sells to both residence and commercial customers.
At the time of the inspection four employees worked at the
plant. The employees consisted of two front-end loader operators
who dump the sand and gravel into a funnel like trap which
funneled the raw material onto the prime conveyor belt below.
This belt took the raw material into the plant for processing.
In addition to the two front-end loader operators there was
a crusher operator who operates the controls and a laborer.
The employee who allegedly was exposed to the hazard of
falling rocks was the laborer who spent 15 to 20 minutes each day
cleaning up in an area below the trap next to the conveyor.
Using a shovel he cleaned up the fine material and rocks that
occasionally spilled off the conveyor belt onto the conveyor's
platform floor"
The conveyor was waist to chest high. The
laborer shoveled the spilled material back on the conveyor belte
The entrance to the area under the trap was a corridor two
or three feet wide. The inspector testified "I couldn't actually
see him back in under the trap, but he was working back in there
and then progressing." CT. 35). It appeared to the inspector
from his point of observation that the laborer did not have safe
access to the area where the laborer was working. At the time
the two front-end loaders using an elevated roadway, were dumping
raw material from the pit into the trap. The inspector stated
"it appears that while the loaders were dumping he (laborer)
could have been struck by material had the loader not positioned
(his load) just right."

1841

However, the inspector did not observe any falling material
of any kind. Other than "occasional dust" no rocks or other
material spilled over the top rim of the trap.
The agency records indicate that the company abated the
alleged violation by instituting a practice of shutting off the
power to the conveyor and prohibiting the dumping of material
into the trap while the employee was cleaning the spillage in the
area below the trap.
Respondent presented evidence that the trap was 10 feet wide
and 20 feet long. Half way back it had a solid metal headwall
that was 8 1/2 feet high. There was a fluorscent red line about
18 inches below the back side of the trap and the material dumped
into the trap was kept 18 inches to two feet below the head wall.
Mr. Savage respondent's vice president testified that it
would be "virtually impossible" for a rock to ever come over the
rim of the hopper. He also explained that there was approximately 20 feet (horizontally> from the place where the material was
being dumped to where the laborer was doing the clean up.
In his
opinion there was no "danger in any way" to the employuee working
below.
Employer presented evidence that due to changing conditions
in the pit the cited practice and the entire trap area was discarded in May of 1987. It was not discarded because of any
suspected hazard.
During the five year period preceding this citation MSHA
inspectors inspected the pit at least twice a year and none noted
or commented to respondent about any potential hazard involved in
cited pract
Although the inspector did not observe any falling material
other than occasional dust, it was the Secretary's position that
there was a "possibility that in a moment of mental lapse on the
part of the operator"of the front-end loader that a load could be
dumped in such a manner that rocks would come over the headwall
and down on the laborer as he walked underneath the trap to or
from a work pointo
On the basis of the evidence presented I find that there was
a violation and a remote possibility it could result in an injury.
However, I find the possibility of such an accident is unlikely
rather than a reasonable possibility. I therefore find that
there was a violation of 30 C.F.R § 56.11001 but that the violation was not "significant and substantial".
Significant and Substantial Violation
A "significant and substantial" violation is defined in
section 104(d)(l) of the Mine ~ct as a violation "of such nature

1842

as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. § 814(d)(l). A violation is properly designated significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation7 (3)
a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury." U.S.
Steel Mining COou 6 FMSHRC 1834 7 1836 (August 1984_)_o~We
have emphasized thatu in accordance with the language of
section 104(d)(l),
is the contribution of a violation
to the cause and effect of a hazard that must be signif icant and substantial. U.S. Steel Mining Company, Inc.,
6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Companyu Inc.u 6 FMSHRC 1573, 1574-75 (July 1984) o
In this case based upon the plantus past history and the
evidence presented by respondent it is found that it is unlikely
that the hazard contributed to will result in an event in which
there is an injuryo
I therefore find the violation of 30 C.F.R.
§ 56.11001 was not significant and substantial.
The gravity of the violation is high with respect to the
seriousness of the injury which could result if a rock were to
fall over the top of the trap and hit an employee. However, the
likelihood of such an accident is found to be very low. This
finding is consistent with the 21 year history of no injury from
falling rocks while using the practice and procedure for which
the citation was issued. The employer's negligence is evaluated

1843

as low.
I accept the stipulations of the parties with respect to
the remaining statutory criteria set forth in section llO(i) of
the Mine Act.
I have considered the six statutory penalty criteria set
forth in Section llOCi) of the Mine Act, and find that the
appropriate penalty for the violation cited in Citation No.
2644266 is $75.00, and with respect to Citation Nos. 2644264,
2644265 and 2644267 the appropriate penalties are the penalties
proposed by the Secretary, which are $74.00, 74.00 and 20.00
respectively.

Based upon the entire record the stipulations and the
findings made in the narrative portion in this decision the
following conclusions are entered:
CONCLUSIONS OF LAW

1. The Pioneer Sand & Gravel Pit operated by Pioneer Sand &
Gravel Company is subject to the provisions of the Mine Act.
2.

The Commission has jurisdiction to decide this case.

3. Respondent violated 30 C.F.R. § 56.11001: the violation
was not significant and substantial; a civil penalty of $75 is
assessed.

4.

Respondent violated 30 C.F.R. § 56.12005.

s.

Respondent violated 30 C.F.R. § 56.12013.

60

Respondent violated 30 C.F.R. § 56.9006.

7o
The Secretaryus proposed penalties for the violations
found in findings 4v Sv and 6 are appropriate under the criteria
set forth in section llO(i) of the Act.

ORDER
L.
Citation Noa 2644266 as modified by deleting the
characterization of the violation as significant and substantial
is affirmed.

2

0

Citation No. 2644264 and the proposed $74 are affirmed.

3. Citation No. 2644265 and the proposed $74 penalty are
affirmed.

4. Citation
affirmed.

No~

2644267 and the proposed $20 penalty are

Pioneer Sand and Gravel Company is ordered to pay within 40
days of the date of this decision a civil penalty of $243.00.

G_:tr
Aug
Administrative Law Judge
1844

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Pioneer Sand & Gravel Company, Mr. Ronald Savage, Vice President,
P.O. Box 18457, Kearns, UT 84118 (Certified Mail)

/bls

1845

1846