NOVEMBER 1984

Commission Decisions
09-12-84
11-08-84

Carolina Stalite Company
(previously unpublished)
MSHA/George Logan v. Bright Coal Co.

BARB 79-319-PM

Pg. 2518

KENT 81-162-D

Pg. 2520

Administrative Law Judge Decisions
11-09-84
11-02-84
11-05-84
11-09-84
11-09-84
11-14-84
11-14-84
11-14-84
11-16-84
11-16-84
11-19-84
11-20-84
11-21-84
11-26-84
11-27-84
11-27-84
11-28-84
11-29-84
11-30-84
11-30-84

Incoal, Incorporated (Correction)
KENT 83-171
Peabody Coal Company
WEST 83-73
MSHA/Gregory Brown v. A&L Coal Co., Inc.· SE
84-51-D
United States Steel Corporation
LAKE 82-35-M
Tri-City Paving Company
LAKE 84-51-M
Joseph B. Necessary
VA
84-17
MSHA/Chester Jenkins. v. Hecla-Day Mines
WEST 81-323-DM
St. Joe Resources Company
YORK 82-18-M
Albert Vigne v. Gall Silica Mining Co.
SE
84-2-DM
Zapata Coal Corporation
WEVA 84-122
MSHA/I.B. Acton v. Jim Walter Resources
. SE
84-31-D
Peabody Coal Company
KENT 84-97-R
Grundy Mining Company, Inc.
SE
83-29
Markey Mines, Inc. & Calvin Black Enter.
WEST 80-376-M
MSHA/Patricia Anderson v. Stafford Constr. WEST 80-155-DM
Southern Ohio Coal Company
WEVA 84-166
Jim Walter Resources, Inc.
SE
84-66
S.M. Lorusso & Sons, Inc.
YORK 84-5-M
United States Steel Mining Co., Inc.
PENN 84-49
Rushton Mining Company
PENN 85-44-R

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2625
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2649
2651
2657
2659
2680
2685
2690
2691
2693
2699

NOVEMBER
Review was granted in the following cases during the month of November:
Secretary of Labor on behalf of Robert Ribel v. Eastern Associated Coal
Corporation, Docket No. WEVA 84-33-D. (Judge Koutras, September 24, 1984).
United Mine Workers of America v. Westmoreland Coal Company, Docket No.
WEVA 81-256-C. (Judge Steffey, September 24, 1984).
Disciplinary Proceedings, based on Roger Hutchinson v. Ida Carbon Corp.,
Docket No. D 85-1 (KENT 84-120-D) (Judge Broderick, November 1, 1984).
Secretary of Labor, MSHA v. Kitt Energy Corporation, Docket No. WEVA 83125-R. (Judge Fauver, October 4, 1984).
United Mine Workers of America v. Greenwich Collieries, Docket No.
PENN 84-158-C. (Judge Koutras, October 18, 1984).
Secretary of Labor on behalf of 4 miners v. Jim Walter Resources, Docket
Nos. SE 84-35-D, SE 84-45-D, SE 84-47-D, SE 84-52-D. (Judge Melick,
October 15, 1984).
Lonnie Jones v. D & R Contractors, Docket No. KENT 83-257-D(A).
Melick, October 18, 1984).

(Judge

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket Nos.
SE 84-66, SE 84-67. (Judge Kennedy, October 19, 1984)
Review was denied in the following cases during the month of November:
Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. SE 84-10.
(Judge Koutras, October 1, 1984)
Secretary of Labor, MSHA v. Montana Contract Mining, Docket No.
WEST 83-83-M. (Judge Morris, October 1, 1984)
Secretary of Labor, MSHA v. Bigelow-Liptak Corporation, Docket No.
CENT 84-24-M. (Judge Moore, October 17, 1984)

COMMISSION DECISIONS

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

September 12, 1984
Docket Nos. BARB 79-319-PM
SE 79-56-M
SE 79-91-M
SE 79-92-M
SE 79-93-M
SE 79-94-M
SE 79-95-M
SE 79-85-M
SE 79-87-M
SE 79-114-M
SE 80-35-M
SE 80-37-M
SE 80-44-M

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

v.
CAROLINA STALITE COMPANY
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.
Docket Nos. SE 80-21-M
SE 80-61-M
SE 80-73-M
SE 80-79-M
SE 81-6-M

CAROLINA STALITE COMPANY

ORDER
On May 15, 1984, the U.S. Court of Appeals for the District of Columbia
Circuit issued its decision in Donovan v. Carolina Stalite Co., 734 F.2d
1547, reversing the Commission's decisions in Carolina Stalite Co., 4 FMSHRC
423 (March 1982)(Docket Nos. BARB 79-319-PM, etc.), and Carolina Stalite Co.,
4 FMSHRC 910 (May 1982)(ALJ)(Docket Nos. SE 80-21-M, etc.), and holding that
Carolina Stalite's facility is a "mine" subject to the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 .!:!_~· (1982). The Court remanded
the cases for further proceedings consistent with its opinion. The Court
issued the certified copy of its judgment on August 22, 1984.
In accordance with the Court's opinion, the administrative law judge's
decision in Docket Nos. BARB 79-319-PM, etc., reported at 2 FMSHRC 3508
(December 1980), assessing civil penalties totalling $14,542.00, is
reinstated as the final order of the Commission. Docket Nos. SE 80-21-M,
etc. are remanded to the administrative law judge originally assigned for
further proceedings including the assessment of appropriate civil penalties.

2518

We additionally address an apparent misperception of Commission case
law that is reflected in the Court's opinion. The Court stated, "The
Commission construed the statute ••• to require a company actually to extract
a mineral before being subject to Mine Act jurisdiction." 734 F.2d at 1551.
We emphasize that no such restriction was intended by our decision in this
matter. See Alexander Brothers, Inc., 4 FMSHRC 541, 543-44 & nn.8 & 9
(April 1982), in which we held that a connection with the extractor was
not required for a facility to be subject to the 1969 Coal Act. Such a
connection is also not required for coverage under the Mine Act. I./

~chard Back~~~
V.

;;ft .

,e_~v

.

r ,

(_~-&?\../

L. Clair Nelson, Commissioner

1/
The terms of office of our former colleagues, Commissioners Frank F.
Jestrab and A. E. Lawson, expired at the end of day on August 30, 1984.
Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have
designated ourselves as a panel of three members to exercise "all of
the powers of the Commission," including the issuance of orders and
decisions in proceedings before this Commission.

2519

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

November 8, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 81-162-D

on behalf of GEORGE ROY LOGAN

v.
BRIGHT COAL COMPANY, INC. and
JACK COLLINS
DECISION
This proceeding involves a discrimination complaint brought by the
Secretary of Labor on behalf of George Roy Logqn under section 105(c)(2)
of the Federal Mine Safety and Health Act of 1977 (the "Mine Act"),
30 U.S.C. § 815(c)(2). The Secretary alleges that Logan was unlawfully
discharged by Bright Coal Company, Inc. ("Bright") and, individually, by
his former supervisor, Jack Collins. The basic legal claim underlying
the complaint is that on or about January 19, 1981, Logan engaged in
safety activity protected by the Mine Act by refusing to set safety
posts in an area of broken, unsupported, dangerous top, and that Logan
was discharged by Collins for engaging in such activity. The administra·tive law judge held in favor of Bright and Collins, and dismissed the
Secretary's complaint. 4 FMSHRC 1343 (July 1982)(ALJ). For the reasons
that follow, we reverse and remand with instructions for further proceedings.
I.

The primary issue before us arose in the discovery phase of this
litigation. Respondents Bright and Collins sought production from the
Secretary of all statements given to the Secretary by Logan and others,
as well as the Secretary's records relating to his investigation of the
case. Respondents filed a motion to compel production of the documents
on the grounds that they were essential to the preparation of respondents'
defense, and that the Secretary had not shown that the information was
protected from disclosure.
The Secretary maintained that all statements made by Logan had been
provided to respondents during the course of Logan's deposition. The
Secretary declined to produce the other requested documents asserting
that they "would reveal or tend to reveal the identity of informers who
may have given information to the Secretary," and that such information

2520

was protected pursuant to the informer's privilege, the attorney work
product privilege, and the executive privilege. 1/ The Secretary
opposed respondents' motion to compel production-; stating that the
motion was unsupported, inasmuch as respondents failed to demonstrate
that the documents requested were essential to preparation of their
case, the existence of extraordinary circumstances requiring disclosure,
or their inability to obtain elsewhere the information sought.
Respondents filed an amended motion to compel production stating
that their need for the requested documents was "apparent," that the
Secretary had made no showing that the documents were privileged, that
certain of the documents bear upon the integrity of the investigation
conducted by the Mine Safety and Health Administration ("MSHA"), and
that the Secretary's fear of possible economic reprisal by the operator
against miners who had given statements was moot because the operator
had ceased operations. Respondents sought an order from the judge
compelling the Secretary to comply with their amended request for
production including, among other things, "all documents and witnesses,
not expected to be introduced, which or who tend to disprove the allegations
of the applicant."
Such was the procedural and legal posture of the question of
privilege as it was placed before the administrative law judge. The
judge noted that the provisions of Commission Rule 59, 29 C.F.R.
§ 2700.59, relating to disclosure of miner witnesses and informants,
must be observed. ]:_/ The judge ruled that an "informer" is one who
provides MSHA with information detrimental to an operator. According to
the judge, a person who gives the Secretary information favorable to an
operator is not an informer and that person's identity must be disclosed
by the Secretary upon request. The judge also ruled that all statements
in the Secretary's possession which tend to disprove the allegations of
the discrimination complaint were to be disclosed.

]:_/
It is apparent that the Secretary's underlying motive for invoking
the executive and attorney work product privileges is to shield the
identity of informers. Accordingly, this case is resolved straightforwardly by addressing the issue presented solely in the context of the
informer's privilege. Should the Secretary determine that continued
litigation of the claimed attorney work product privilege is necessary
in this case, he may reassert and further support it before the administrative law judge below. The Secretary has declined to pursue on
review the applicability of the executive privilege.
]:_/

Rule 59 provides:
Name of miner witnesses and informants.
A Judge shall not, until 2 days before a hearing, disclose or
order a person to disclose to an operator or his agent the name of
a miner who is expected by the Judge to testify or whom a party
expects to summon or· call as a witness. A Judge shall not, except
in extraordinary circumstances, disclose or order a person to
disclose to an operator or his agent the name of an informant who
is a miner.

2521

The Secretary requested the judge to reconsider his ruling. The
Secretary stressed that, through the depositions that had been taken,
the respondents already had been supplied with the names of all persons
having knowledge of the facts. The Secretary argued that the narrow
definition of "informer" adopted by the judge defeated the underlying
purpose of the informer's privilege. He maintained that if he were to
comply with the judge's order, the respondents, being aware of all
persons having knowledge of the facts, and being provided with the
identities of those persons who made statements favorable to the
respondents, could thereafter readily determine the identity of those
persons who had made statements detrimental to their.position.
The judge rejected the Secretary's arguments. He ruled that a
person making a statement to the Secretary which tended to discredit
Logan, or that would show that there was no discrimination, was not an
informer and that such person's identity and statements were not
privileged. According to the judge, if an individual gave information
favorable to the respondents, but also reported a violation of the Mine
Act, MSHA was to disclose the former information in such a way as to
avoid revealing the latter. If individuals who made statements favorable to the respondents were called as witnesses, the judge directed
that no questions be asked of them that would tend to reveal whether
they had reported violations of the law.
The Secretary declined to produce the documents in accordance with
his policy of protecting confidential sources. The judge, in turn,
issued an order listing a number of sanctions he would impose at the
hearing should the Secretary refuse to comply with the particulars of
his order. The judge also issued a subpoena duces tecum to the Secretary
compelling him to bring to the hearing all documents tending to disprove
the allegations of Logan, and the names of witnesses which these documents
indicated would testify adversely to the Secretary's position.
Respondents filed a motion to dismiss on the ground that the
Secretary had failed to comply with the judge's orders. The Secretary
did not oppose dismissal. The judge, however, denied the operator's
motion for dismissal noting the absence of assent by the alleged
discriminatee, Logan. Shortly before the hearing, the Secretary provided the judge and counsel for respondents with a copy of his investigative file, except for those items which the Secretary deemed to be
privileged, and a list of all persons whose names appeared in his file,
including those believed to have knowledge of relevant facts.
II.

The informer's privilege is the well-established right of the
government to withhold from disclosure the identity of persons furnishing
information of violations of the law to law enforcement officials.
Roviaro v. United States, 353 U.S. 53, 59 (1957). See generally Annot.,
8 ALR Fed. 6 (1971). The purpose ~f the privilege is to protect the
public interest by maintaining a free flow of information to the government

2522

concerning po.ssible violations of the law and to protect persons supplying
such information from retaliation. Roviaro, 353 U.S. at 59; Hodgson v.
Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th
Cir. 1972). The privilege is qualified, however, and where disclosure
is es~ential to the fair determination of a case, the privilege must
yield or the case may be dismissed. Roviaro, 353 U.S. at 60-61. 1../
Respondents contend that the Secretary improperly attempted to
limit the scope of discovery based solely upon a bare assertion of
privilege without proper support by affidavit or proof of the applicability of the privilege. The burden of proving facts necessary to
support the existence of the informer's privilege rests with the
Secretary. Secretary of Labor v. Stephenson Enterprises Inc., 2 BNA OSHC
1080, 1082 (1974), 1973-74 CCR OSHD ,I 18, 277 at 22, 401, aff 'd, 578 F. 2d
1021 (5th Cir. 1978). In the instant case, counsel for the Secretary
asserted the privilege and resisted attempts by the respondents to
obtain the disputed material. There is authority for the proposition
that the privilege can be invoked only through the filing. of a formal
claim of privilege and confidentiality by the head of the department
with control over the matter, supported by affidavits attesting to facts
sufficient to allow an independent judicial determination that the
privilege exists. Fowler v. Wirtz, 34 F.R.D. 20 (S.D. Fla. 1963); Cf.
Black v. Sheraton Corp. of America, 564 F.2d 531, 543 (D.C. Cir. 1977).
The great weight of case law concerning the privilege, however, addresses
and disposes of the issue without focusing on whether the privilege was
"formally" raised. Here the claim of privilege was raised by the Secretary's
trial attorney in response to the respondents' motions and the judge's
orders. While the Secretary's claim of privilege may not have been
raised in as formal and complete a fashion as possible, it was raised
with sufficient formality to alert the judge and the opposing parties to
the possibility of harm that could occur from disclosure of the statements.
We therefore hold that the Secretary's method of raising the privilege
was sufficient. We proceed with analysis of the general issue.

1../

Before the question of privilege is reached, it must be determined
whether the information sought through discovery is relevant to the
subject matter of the proceeding. Wirtz v. Continental Finance and Loan
Co., 326 F.2d 561, 563 (5th Cir. 1964). The scope of discovery in
Commission proceedings is governed by Commission Procedural Rule 55(c),
which provides:
Parties may obtain discovery of any relevant matter,
not privileged, that is admissible evidence or appears
reasonably calculated to lead to the discovery of
admissible evidence.

29 C.F.R. § 2700.55(c). No one has disputed the relevancy of the information contained in the statements sought by respondents. Certainly, the
judge appears to have considered the material to be relevant. Given the
absence of objection, the judge's rulings, and the broad interpretation
traditionally accorded r~ies governing discovery, we assume that the
material subject to the judge's orders is relevant, and proceed to
consider whether the informer's privilege applies.

2523

Although it is not absolutely clear from the record whether the
Secretary is actually asserting the informer's privilege on behalf of
non-miners as well as miners, the public interest in protecting persons
who discuss alleged Mine Act violations with government officials is
served regardless of the relationship of the informer to the alleged
violator, i.e., whether the informer is an employee of the respondent or
a non-employee. Courts have long recognized the obligation of all
citizens to cooperate in law enforcement efforts and have encouraged and
protected the communication of possible violations of law by shielding
the informer's identity. Roviaro, 353 U.S. at 59. In addition, it has
been held that the informer's privilege is applicable to any person
furnishing information to government officials concerning violations of
the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et~·
Secretary of Labor v. Quality Stamping Products Co., 7 BNA OSHC 1285,
1288 (1979), 1979 CCR OSHD ,I 23,520 at 28,504 (OSHRC). We believe that
a similar conclusion is appropriate under the Mine Act.
The Mine Act and its legislative history reflect congressional
concern about the possibility of retaliation against miners who par~
ticipate in enforcement of the Act. Section 103(g)(l) provides miners
with the right to obtain an immediate inspection of the mine upon the
miner's notification to the Secretary of the existence of a violation or
danger. 30 U.S.C. § 813(g)(l). This section further provides that ''the
name of the person giving said notice and the names of individual miners
referred to therein shall not" be provided to the operator. See S.
Rep. No. 181, 95th Cong., 1st Sess. 29 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 617 (1978) ("Legis. Hist."). Similarly, section 105 (c) (1) of the Act
proscribes discrimination where, among other things, a miner has instituted
or caused to be instituted any proceeding under or related to the Act,
or has testified or is about to testify in any such proceeding. 30 U.S.C.
§ 815(c)(l); Legis. Hist. at 623.
We believe that these expressions of
congressional concern for protecting the identity of miners who contact
the Secretary regarding violations of the Act, and otherwise protecting
miners who participate in enforcement of the Act, underscore the need
for the recognition and proper application of the informer's privilege
in Mine Act proceedings. Therefore, in order to maximize the lines of
communication with the Secretary concerning violations of the Mine Act,
we hold that a person's status as an informer is not dependent on
whether that person is an employee of a mine operator. The presence of
an employment relationship, however, with the greater opportunity for
retaliati0n that it provides, is a relevant factor to be considered in
conducting the balancing test, discussed infra, for determining whether
the privilege must yield in a particular case.
The crucial issue in the present case remains whether the substance
of the :qn_formation furnished to the Secretary by an individual is
determitjative of that person's status as an informer. Respondents
contend that the administrative law judge properly ruled that persons
who furnish the Secretary with information favorable to the operator are
not infor~ers. The Secretary maintains that an informer is entitled to
anonymity, regardless of the substance of the information he furnishes.

2524

We hold that the applicability of the informer's privilege to the
Mine Act does not rise or fall based upon the substance of a person's
communication with government officials concerning a violation of law.
To hold otherwise would undermine the very purpose of that privilege.
The informer's privilege is recognized at law in order to encourage all
citizens to cooperate with government officials who are investigating
possible violations of our nation's laws. To ensure that this public
interest is fully served, it is essential that citizens who communicate
with government officials in such investigations can be confident that
their cooperation will not affect them adversely. This confidence would
be seriously eroded, and the citizenry's desire to cooperate by communicating with government officials chilled, if the substance of a communication were held to control the disclosure or non-disclosure of the
identity of the person giving the statement.
The practical reasons underlying this conclusion are manifest. Not
only could disclosure of the identities of persons giving favorable
statements to MSHA lead, by process of deduction, to the identification
of those persons giving adverse statements, but persons identified as
giving favorable statements would be vulnerable to direct or subtle
pressure to give even more favorable testimony. Cf. NLRB v. Robbins
Tire and Rubber Co., 437 U.S. 214, 240 (1978). Furthermore, even though
statements favorable to a party would not be resented by that party,
other interested persons or parties might not hold as charitable a view
of the "favorable" statements. Id. Finally, a disclosure test that
turns on the "favorable" or "unfavorable" nature of the contents of a
statement would place on the government an obligation difficult to
discharge due to the inherent subjectivity of the judgment required.
Therefore, we hold that the judge erred in ruling that the informer's
privilege applies only to persons furnishing information detrimental to
a party. Rather, an "informer" is a person who has furnished information
to a government official relating to or assisting in the government's
investigation of a possible violation of law, including a possible
violation of the Mine Act. Because the judge applied an erroneous test
in ruling that the Secretary was required to disclose information and
thereafter imposed sanctions against the Secretary for his failure to
make that disclosure, a remand to the judge for application of the
proper test is necessary.
Given the ~rocedural posture of this case, on remand the judge
should order the Secretary to turn over the balance of the material
withheld for an in camera inspection. In evaluating this material, the
judge should first determine whether the information sought by the
respondents is relevant and, therefore, discoverable. If he concludes
that the material is discoverable, he should then determine whether the
information is privileged. Application of the informer's privilege
should be based upon the definition of "informer" adopted above.

2525,

Recognizing that the informer's privilege is qualified, if the
judge concludes that the privilege is applicable, he should next conduct
a balancing test to determine whether the respondents' need for the
information is greater than the Secretary's need to maintain the privilege to protect the public interest. Drawing the proper balance
conc~rning the need for disclosure will depend upon the particular circumstances of this case, taking into account the violation charged, the
possible defenses, the possible significance of the informer's testimony,
and other relevant factors. Among the relevant factors to be considered
are the possibility for retaliation or harassment, and whether the
information is available from sources other than the government.
The burden of proving facts necessary to show that the information
is essential to a fair determination rests with the party seeking
disclosure. Hodgson v. Charles Martin Inspectors of Petroleum, Inc.,
459 F.2d at 307. In this regard a demonstrated, specific need for
material may prevail over a generalized assertion of pr"ivilege. Black v.
Sheraton Corp. of America, 564 F.2d at 545. Some of the factors bearing
upon the issue of need include whether the Secretary is in sole control
of the requested material or whether the material which respondents seek
is already within their control, and whether respondents had other
avenues available from which to obtain the substantial equivalent of the
requested material. Where the disclosure of the identity of an informer
is essential to a fair determination of the case, the privilege must
yield or the case may be dismissed. Roviaro, 353 U.S. at 59.
If, on the one hand, the judge concludes that the Secretary's need
to preserve the identity of his informers should prevail, he should deny
the amended motion to compel production of documents, seal the material
previously withheld as part of the record for use on any appeal, and
proceed to decide the case on the merits without resort to the sanctions
previously imposed due to the Secretary's nondisclosure of the statements.
If, on the other hand, the judge concludes that the respondents' need
for this information is essential for a fair determination of the case,
and that the privilege must yield, he should order the Secretary to
disclose the information. T~e judge may, at his discretion, conduct a
limited hearing to afford the parties an opportunity to develop additional
evidence based upon the disclosure. He should then proceed to decide
the case solely on the basis of the supplemented record. Should the
Secretary resist the judge's order to disclose, dismissal of the proceeding is the appropriate sanction with further review available in
accordance with section 113(d)(2) of the Mine Act. 30 U.S.C. § 823(d)(2).
In any event, the judge's decision must be supported by findings of fact
and conclusions of law, and be grounded in the body of case law developed
by the Commission in the areas of work refusal and discriminatory discharge.

2526

For the reasons set forth above, we reverse the decision of the
administrative law judge and remand the case to him for further proceedings consistent with this decision.

~~ J
Richard V. Backley, Acting Chairman

L. Clair Nelson, Commissioner

252'7

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NOV 9 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 83-171
A/O No. 15-02290-03508

v.
INCOAL, INCORPORATED,
Respondent

Docket No. KENT 83-240
A.C. No. 15-02290-03512
No. 11 Mine

CORRECTION TO DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

A decision approving settlement was issued in the above
cases on October 31, 1984. The wording of the decision
should be corrected as follows:
Page 2, paragraph 7, the first sentence
should read as follows:
Thus, the nine violations were originally
assessed at a total amount of $64,000 •

.t;ei-w .c;

,A-/!iz'.d;Y; t:f

James A. Broderick
Administrative Law Judge
Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S~
Department of Labor, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Robert I. Cusick, Esq., Wyatt, Tarrant & Combs,
2600 Citizens Plaza, Louisville, KY 40202 (Certified Mail)

/fb

2528

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

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

80204

NOV 2 1984

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

v.

Black Mesa Mine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances: Marshall P. Salzman, Esq., Office of th8 Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
Michael O. McKown, Esq., Peabody Coal Company,
St. Louis, Missouri,
for Respondent.
Before:

Judge Morris

This case, heard under provisions of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et~., (the "Act"),
arose from an inspection of the Black Mesa surf ace coal mine
operated by Peabody Coal Company. The Secretary of Labor seeks
civil penalties because respondent allegedly violated two safety
regulations adopted under the authority of the Act.
Procedural History
After notice to the parties, an expedited hearing was held
in Phoenix, Arizona on December 13, 1983. The parties filed
post-trial briefs and on March 6, 1984 the judge's decision was
issued. On March 26, 1984 the judg~ received a motion for a
rehearing filed by Peabody. The parties were advised by the
judge that his jurisdiction had terminated. The motion was,
accordingly, forwarded to the Commission.
On April 4, 1984 the Commission directed the judge to
consider and rule on the operator's motion and to take such
further action as might be necessary or appropriate (Order, April
4, 1984).

2530

On April 10, 1984 the judge granted the parties an
opportunity to state their views concerning Peabody's motion.
The judge further indicated that if the motion was granted he
would take official notice of the trial transcript in El Paso
Rock Quarries, Inc., 3 FMSHRC 35 (1981).
After considering the response of the parties the judge
granted Peabody's motion (Order, April 25, 1984).
On September 11, 1984 a supplemental hearing was held in
Denver, Colorado. The parties waived their right to file further
briefs and they rested on their oral arguments.
Citation 2006837
In connection with this citation the Secretary of Labor
seeks a civil penalty of $2,000 because Peabody failed to provide
a berm on its elevated roadway, thereby violating the mandatory
standard published at 30 C.F.R. § 77.1605(k), which provides:

Ck) Berms or guards shall be provided on the
outer bank of elevated roadways.
Issues
The issues are whether berms are to be provided at the edge
of a bench in the working pit of a multiple seam surface coal
mine. Further, a secondary issue is whether the diminution of
safety doctrine is viable.
Summary of the Evidence at the
hearing in December, 1983
The facts surrounding the death of dozer operator Cecil
Yazzie are basically uncontroverted.
Petitioner's evidence, in the main, addresses the details of
the accident. Peabody's evidence generally addresses the
operation of its surface coal mine. A sketch, Exhibit Pl,
illustrates the location of the highwall, the coal seam, the path
of Yazzie's dozer, the keyway and the spoil pile.
William G. Denning testified for MSHA: In November 1982 MSHA
Inspector Denning investigated a fatal accident that occurred in
the Jl-N6 (hereafter J-1) pit at Peabody's Black Mesa coal mine
(Tr. 7, 10, 11; Exhibit Pl). His investigation established that
on November 5, 1982, at the commencement of the shift, at 4 p.m.,
dozer operator Cecil Yazzie met his supervisor, Moree, in the pit
area. Moree drove Yazzie through the pit from the coal face on
the Blue seam coal bench to Ramp c. Moree instructed Yazzie in
his work.
His duties included leveling the shot coal from the
previous shifts, making ramps up the coal face, and building
portions of Ramp C (Exhibit Pl).

2531

After leveling the shot coal Yazzie proceeded to Ramp C and
began working at that location.
At about 11:30 p.m. Yazzie,
Moreo and Ralph Charlie (shooter/blaster) were located near the
bottom of Ramp C. They were preparing to set off a coal shot on
the Blue coal seam. Yazzie's dozer, parked on the ramp, was used
as protection from the blast.
After a delay the shot was set off.
Moreo found no misfires and he left the coal bench. While he was
leaving the pit Moreo passed Yazzie who was starting to tram his
dozer from Ramp C through the pit to the carry-all bus at Ramp E.
Moreo continued out of the pit and stopped for a few minutes to
talk to the coal loader operators.
He then proceeded to Ramp E.
After arriving at Ramp E, Moreo became concerned because he could
not find Yazzie. Moree then drove to the coal face on the Blue
seam and, after a brief inspection, he observed Yazzie's upset
dozer in the keyway near Ramp C. (Tr. 13; Exhibit Pl). Moreo,
who was also an Emergency Medical Technician, and others could
not revive the unconscious Yazzie (Exhibit Pl).
The keyway, or ditch, was an area excavated by the dragline
along the seam coal bench.
It was 31 feet to the bottom of the
keyway.
At the time of the accident the keyway extended from
Ramp C approximately 600 feet toward Ramp E.
The inspector's investigation further established that,
after leaving Ramp C, Yazzie's dozer traveled in a path at a
slight angle away from the keyway.
After traveling approximately
75 feet Yazzie changed directions and went toward the keyway.
He
made another slight correction when 40 feet from it but he
continued in the general direction of the keyway.
After the
second change in direction he traveled approximately 35 feet
before toppling off the coal bench into the keyway.
At that
point his dozer was at the edge of the coal shot (Exhibit Pl).
The dozer tread marks for the final 35 feet indicate the
dozer was still tramming forward at the time of the accident.
It
appeared that the outer edge of the coal bench collapsed under
the dozer, causing it to roll sideways off of the bench (Exhibit
Pl).
The dozer fell about 31 feet, impacting the top edge of the
rollover protective structure. Yazzie remained inside the
operator's cab; however, it appeared he was not wearing the seat
belt that was provided (Exhibit Pl).
After the coal shot and before this accident occurred the
dragline had resumed operations. While digging, the dragline's
lights illuminated the pit and accident area; however, as the

2532

dragline spoiled, it swung away from the pit, leaving the area
relatively dark. This change from light to dark could have
affected Yazzie's perception. Also while spoiling, the dragline
created dust. in the pit that could have affected visibility
(Exhibit pl).
Yazzie was normally assigned to work at the J-7 pit area.
He worked in this particular pit, J-1, only when needed. A
keyway, as excavated in the J-1 pit, is sometimes, but not
always, present in the J-7 pit. The unexplained changes in the
direction of the dozer could have been made by Yazzie in order to
tram the dozer around the shot coal. Since Yazzie was newly
assigned to the ~-1 pit he may have forgotten about the keyway
being adjacent to the shot coal and trammed the dozer into it
(Exhibit Pl).
As a result of its investigation MSHA concluded that the
accident occurred due to the fact that Yazzie turned the dozer
and trammed it toward the keyway. Since there was no berm along
the outer edge of the elevated coal bench there was nothing to
prevent the dozer from traveling into the keyway. MSHA could not
determine the reason why Yazzie turned the dozer toward the
keyway.
In MSHA's opinion a contributing factor to the fatality
was Yazzie's failure to wear the seat belt provided in the dozer
CE xh i bit P 1 ) .
MSHA's inspection manual contains guidelines construing the
berm standard. The manual states:
The requirements of Section 77.1605(k) apply to that
part of an elevated haulage road where one bank is,
or both banks are, unprotected by a natural barrier
which will prevent vehicles or equipment from running
off and rolling down the unprotected bank or banks.
"Elevated roadways", as used in this requirement, are
roadways of sufficient height above the adjacent terrain to create a hazard in the event mobile equipment
ran (sic) off the roadway.
"Berm" as used in this requirement means a pile or
mount of material at least axle high to the largest
piece of equipment using such roadway, and as wide at
the base as the normal angle of repose provides. Where
guard rails are used in lieu of berms, they shall be of
substantial construction.
The width of the haulage road does not preclude the
need for berms or guard rails.
(Exhibit P8).

2533

In December 1981, in response to questions concerning the
berm standard, the administrator for coal mine safety and health
issued MSHA's policy memorandum 81-40C . . The administrator, on
behalf of MSHA, stated in part as follows:
Section 77.1605(k), 30 CFR 77, is applicable to all
elevated roadways on mine property, including roads
used to transport coal, equipment, or personnel, and
regardless of the size, location, or characterization
of the roadways. Berms or guards are required on all
exposed banks of elevated roadways. Thus, elevated
roadways with two exposed banks are required to have
berms or guards on both sides.
(Exhibit P7).
At the time of the accident the dragline had exposed the
Blue coal seam. Two ramps were being used for access to the pit
area (Tr. 12, 13; Exhibit Pl).
In the inspector's opinion a berm should have been placed
from the point where Ramp C intersected the Blue coal seam bench
back towards Ramp E, a distance of about 600 feet (Tr. 22). The
inspector considered the coal bench a roadway because the same
type of equipment uses the coal bench and the haul roads (Tr.
2 3) •

Surface changes occur in the mine as mining progresses from
one seam to another but there is always a bench in the coal pit
used for a travelway (Tr. 23).
The MSHA surface inspection manual (Exhibit P8 at pages 336,
337) and the MSHA policy memorandum define an elevated roadway.
These definitions, in the inspector's opinion, are applicable to
Peabody's work place (Tr. 24-26, 61). The inspector relied on
the policy memorandum in forming an interpretation of what
constitutes a roadway (Tr. 43). A roadway is a travelway used to
transport equipment, personnel and coal (Tr. 43, 44, 61). But
the inspector would not consider a surge pile to be a roadway
(Tr. 49, 50) .
In the inspector's opinion there are some ''gray areas" as to
what constitutes a roadway; in addition, an inspector has a
degree of judgment as to the citations he can issue (Tr. 50, 51).
The lack of a berm, as here, presented a hazard to a miner
such as Yazzie (Tr. 26). A berm can either stop a vehicle, redirect it, or warn an operator that he is in close proximity to
the edge (Tr. 27, 39, 40).

2534

In the inspector's opinion a berm would not be necessary if
the dozer was cleaning the coal or pushing dirt off the edge of
the bench (Tr. 50).
Respondent's Evidence
Buck Woodward, Tracy Northington, Alan Cook, Don Holt, Rick
Contratto and Joe Johnson testified for respondent.
At the Black Mesa mine Peabody uses a multiple seam mining
process for its five seams of coal (Tr. 70-72). The company uses
a color coding system to differentiate between its coal seams
(Tr. 71). These seams are respectively designated, from the
surface down, as green, blue, red, bottom red, and yellow (Tr.
71; Exhibit F).
The coal bench is the area where the dragline and other
pieces of mining equipment are located. The highwall is the face
left by the dragline and the stripping equipment (Tr. 71; for a
cross section view see Exhibit B).
Black Mesa uses a Marion 8750 dragline to first cut a keyway
or ditch (Tr. 71-73).
A drill crew then drills through the overburden to the first coal seam (Tr. 73). The dr~gline removes the
drilled and shot overburden by depositing it in an area that has
already been mined (for an illustration of the pit configuration
see Exhibit C).
The highwall in the pit results when the overburden is
removed. The removal of the overburden exposes the coal seam
which is, in turn, drilled and shot. Shovels and other equipment
load the coal onto trucks (for an illustration of coal loading
operation see Exhibit D).
The mining sequence continues as the dragline removes the
coal. Drilling, shooting, and loading activities follow behind
the dragline (Tr. 74). The dragline, using the wide radius of
its shovel, spoils the overburden and later the parting l; into a
pit where the coal has already been removed (Tr. 74).
In the J-1 pit the bench was 130 feet wide. Peabody tries
to maintain that distance but it narrows slightly at the bottom
coal seam (Tr. 15).

ll

Parting is the interburden between coal seams.

2535

As a re~ult of this citation MSHA requires a berm when the
topmost (green) coal seam is eKposed. The berm must be installed
prior to any .shooting. The berm is approximately six feet high
and sixteen and one half feet wide at the base (Tr. 77). This
berm must later be pushed off so the crews can shoot the coal
beneath it.
MSHA also requires a third berm on the parting between the
second and third seams (blue and green seams). This berm must,
in its turn, be pushed off so the drilling crews can fragment the
area beneath it. The dragline, in turn, removes the parting (Tr.
79).
The construction and removal of the berms continues as the
mining progresses. The progression is both downward as the coal
seams are exposed and lateral as the dragline removes the coal or
the parting (Tr. 79-80).
In this mining progression the MSHA
citation requires that 12 berms be constructed and removed (Tr.
80).
The pit, designated as J-1, is the working pit of an active
surface coal mine. Haulage trucks and loader crews are actively
engaged in the coal removal. The haulage trucks, 16 feet 8
inches wide, primarily drive down the middle of the bench, or a
bit to the highwall side (Tr. 82). In the pit there is one
direction of traffic. Once the trucks reach the ramp they go out
of the pit area until they reach a permanent haulage road. The
trucks then travel to a preparation site (Tr. 88).
In the opinion of Peabody's engineer an active pit area is
not a roadway. One reason is that the area changes daily. Haul
roads at mines are designed to certain specifications and they
take into consideration the speed of vehicles using them. Also
the drainage of a haul road is a factor to be considered (Tr. 82,
83).
Peabody uses track type and rubber-tired dozers to emplace
its berms. When necessary dump trucks haul in material to
construct the berms (Tr. 81).
Berms, such as MSHA requires here, are not required at any
other mine in the West (Tr. 84).
In the opinion of Peabody's engineer a berm in place here
would not have prevented the accident. Yazzie was entering the
coal shot area and his duties would have required that he level
the area (Tr. 84).
Peabody's industrial engineer conducted a time and motion
study relating to the installation and removal of berms (Tr. 97).
A videotape (Exhibit U) shows the building of a berm with a Clark
380 rubber-tired dozer (Tr. 98-100). The front portion of the

dozer goes out over the edge of the bench when building and even
more so when removing the berms (Tr. 98-102).
In building a berm
six feet high the average dozer cycle~/ is .47 minutes.
Normally berms are built during the third shift, from
midnight until 8 a.m. Northington has monitored over 4000 dozer
cycles (Tr. 101).
When berms must be built at the edge of parting seams then
material must be hauled in to construct the berms since there is
no loose material available. Peabody estimates, that on an
annual basis, it has hauled in 150,000 yards of material or about
2,000 truck loads, to build such berms (Tr. 104).
In removing the.berms the dozer operator, whose vision is
blocked by his equipment, goes right to the edge. Some operators
have stated this was unsafe (Tr. 105).
Trucks in the pit never operate closer than within 80 to 100
feet of the edge of the bench (Tr. 106).
Peabody submitted a time and motion study comparing the
"before and after" exposure of its men and equipment in abating
this citation. All calculations were keyed to an annual basis
(Tr. 107; Exhibits V, W, X).
Before the issuance of this citation Peabody's activities
resulted in its miners and equipment being exposed to the hazard
of being within 20 feet of the ditch edge for 1,085.8 hours.
This exposure was primarily the time required to drill a 20 foot
zone next to the edge of the ditch. This exposure is still
incurred because it is still necessary to drill and remove the
coal in the 20 foot zone (Tr. 108). But the exposure in this
zone is now increased to 1,880.6 hours. This 73 percent increase
results from the construction and removal of the berms now required by MSHA (Tr. 109; Exhibit X).
Before the berms were required the only dozer exposure to
the ditch edge occurred during the cleaning of the coal. This·
was for 40.48 hours (Tr. 109; Exhibit W). As a result of abating
the citation the exposure has increased to 831.5 hours, an increase of 1954 percent.

~/

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

2537

In removing the coal, Peabody's rubber-tired dozer cuts a
14 foot swath and approaches the edge 7,619 times (Tr. 109;
Exhibit V). Since Peabody is now required to build and remove
berms there are 103,451 cycles to the ditch edge, an increase of
1,612 percent (Tr. 109-110; Exhibit V).
Peabody has constructed
58 miles of berms to abate this citation (Tr. 115, 116).
Peabody places berms on its active haul roads where there is
vehicular traffic traveling "at a good speed" (Tr. 125).
In the opinion of mine superintendent Joe Johnson the
standard does not apply to the working area of the pit. The
company is constantly mining this area. MSHA has never
previously cited the company for failure to have berms in an
active pit area. But the company has been cited due to an eroded
berm on a haul road (Tr. 151, 154, 155).
Don Holt, Peabody's safety director for its mines in
Kentucky and Ohio, is familiar with MSHA regulation§ 1605(k).
In Holt's opinion the purpose of the regulation is to provide a
guide on a haul road to keep vehicles within a confined area.
Further, in Holt's opinion, the section does not apply to the
working pit of surface mines (Tr. 132-134).
In the mines in the eastern portions of the United States
the working coal pits are 45 to 80 feet wide. It would
practically shut down such mines if MSHA requires berms as it
does here. MSHA does not now require berms in other active
working pits (Tr. 136, 137).
Summary of the Evidence adduced at the
hearing in September 1984
Peabody's Evidence
Buck Woodward, Peabody's planning engineer, testified that
on July 30, 1984 he toured the El Paso operations including the
pit where Citation 159662 was issued for a violation of the berm
standard. (Supplemental transcript at pages 7 and 8).
El Paso mines limestone as an aggregate for concrete. In
its mining process the company initially removes 30 feet of red
rock. The rock has no commercial use CS. Tr. 10, 11).
After the removal of the initial overburden El Paso shoots a
10 foot by 10 foot pattern and removes the rock from two lifts.
The blasting is done in a perpendicular direction towards the
highwall (S. Tr. 11, 18). (Drill holes can be seen in Exhibit Y).

2538

On the other hand, at Peabody's Black Mesa surface coal mine, the
overburden coal and parting is mined from the middle of the pit
in a lateral direction CS. Tr. 18).
On the day of Woodward's visit at El Paso the top bench was
200 feet wide. As the rock is mined this bench will be reduced
to a width of 60 feet CS. Tr. 12, 13). The citation issued to El
Paso which evolved into the Commission decision, previously
cited, alleges the El Paso bench was as narrow as 45 feet CS. Tr.
28). The coal bench at Black Mesa cannot vary and it remains at
a fairly constant width of 130 to 140 feet cs. Tr. 21).
It takes one to two years to reduce the El Paso bench to a
60 foot width from the 200 foot width. But at Black Mesa the
dragline removes a 400 by 200 foot wide area in four and a half
days CS. Tr. 18). El Paso does not have any large overburden
stripping equipment CS. Tr. 19).
While at El Paso Witness Woodward observed the company's
vehicles operating at 20 to 25 mph. At Black Mesa the trucks and
the coal removal equipment operate at 3 to 5 mph. The Black Mesa
vehicles only attain the greater speeds when they reach the ramps
(S. Tr. 17, 19, 20).
On the day of Woodward's visit the El Paso berm was 40 feet
from the edge of the lower lift face. There is a road to each
side of the berm. The haulage road, towards the highwall side,
is used for pit inspection and rock removal from the top lift.
The road between the berm and the drop off is used for drilling
and shooting equipment and supervisors' vehicles.
It is also
necessary to use the road between the berm and the edge to knock
off whatever loose rock remains after a blast (S. Tr. 14-16).
The El Paso berm in place in July, 1984 had been there for
six months.
It would likely be there another six months CS. Tr.
14). On the other hand, the Black Mesa berms can be changed
within three hours (S. Tr. 20, 22).
The trucks at El Paso, according to Citation 159662, (issued
in the El Pasd case) were being operated within 10 to 14 feet of
the edge. On the other hand, at Black Mesa the Peabody haulage
trucks get no closer than within 60 feet from the edge of the
bench CS. Tr. 21, 29, 32, 33).
There is more activity at a coal bench than at a rock quarry
(S. Tr. 22).
Witness Woodward concluded that substantial differences
exist between a surface coal mine and a rock quarry. As a result
it is suggested that the berm standard is not applicable to

Peabody. These differences include the distances the vehicles
are from the edge (60 feet versus 10 to 14 feet); the speed of
the vehicles in the pit (3 to 5 mph versus 20 to 25 mph); the
width of the pit (a constant 130 to 140 feet versus 200 reducing
to 45 to 60 feet).
The duration the berms must remain in place
(3 hours versus one to two years) (S. Tr. 25, 28, 29, 31, 34).
MSHA's Evidence
Sidney R. Kirk, an MSHA supervisory inspector, issued
Citation 159662 against El Paso Rock Quarries (S. Tr. 38, 39,
48).
Witness Kirk agreed that his testimony before Judge Moore in
the El Paso case was more correct than his recollection at this
hearing. When the El Paso citation was issued the quarry bench
was 60 to 80 feet wide. Vehicles traveled within 10 to 12 feet
of the edge (S. Tr. 49, 50; El Paso transcript at page 26).
When he inspected the El Paso site Inspector Kirk learned
the company had a speed limit of 5 to 8 mph.
He also observed
vehicles traveling at that speed CS. Tr. 41, 42).
In his opinion
the El Paso vehicles in the limited bench area could not attain
speeds of 20 to 25 mph (Tr. 43).
The inspector further indicated that the berm shown in the
July 1984 photograph did not comply with the berm regulation, 30
C.F.R. § 56.9-22.
In his opinion the berm should have been
located between the drill holes and the edge (S. Tr. 45).
Inspector Kirk indicated he has not inspected a surf ace coal
mine nor enforced any MSHA regulations concerning such a mine (S.
Tr. 48, 53).
In the inspector's view the length of time the El Paso berm
remains in place depends on the demand for the product. At the
time of his El Paso inspection the berm could have been removed
almost every twenty-four hours (S. Tr. 44, 45).
Discussion
Credibility determinations arise in the case. Particularly,
a conflict exists between the testimony of Witnesses Woodward and
Kirk.
I credit Kirk's version as to the speed of the El Paso
trucks on the date he issued Citation 159662. Mr. Kirk was
obviously at the El Paso site on that day. Mr. Woodward was not
present.
On the other hand, I credit Peabody's evidence as it relates
to the operation of the Black Mesa Coal surface coal mine.

2540

Peabody's witnesses have the expertise derived from participating
in the daily mining of coal at that location.
The threshold issue presented here is whether the Commission
decision in El Paso Rock Quarries, Inc., supra, is controlling
precedent.
In the initial decision of this case, 6 FMSHRC 612
(March, 1984), this judge concluded he was bound by the decision.
In El Paso the Commission considered whether a violation of the
applicable berm standard occurred. The particular berm standard
in El Paso applied to metal and non-metalic open pit mines but it
has the same worqing as the standard in contest here.
In El Paso
the Commission held that a bench 3/ in a quarry is an "elevated
roadway" within the meaning of the standard. The El Paso
decision recited that the operator's trucks were operated 40 feet
above a lower bench and the Commission held that "under the facts
of this case, the quarry bench where the haulage trucks were
driven is indeed an elevated roadway within the meaning of
Section 56.9-22," 3 FMSHRC at 36. The El Paso decision itself
does not state how close the El Paso vehicles operated to the
edge of the bench.
For the reason hereafter stated I find that the El Paso
decision is not controlling.
It now appears that there are
substantial differences between the El Paso rock quarry and the
Peabody multiple seam surface coal mine.
In the El Paso scenario
the trucks were operated within 10 to 12 feet of the edge of the
bench. On the other hand, Black Mesa trucks do not operate
closer than 60 feet from the edge of the fairly constant 120 to
140 foot wide bench. Substantial differences also arise in the
duration of time the berms are required to be in place and in the
width of the bench.

ll

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

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

2541

Based on the foregoing factors I conclude that El Paso Rock
Quarries, supra, is not a binding precedent.
The secondary issue is whether Peabody violated the berm
standard. For the reasons hereafter stated I conclude that no
violation occurred.
It is clear that berms are required on "elevated roadways."
Further, a roadway is used to transport coal, equipment, and
personnel. A similar dictionary definition recites that a road
is an "open way for vehicles, persons, and animals", Webster's
New Collegiate Dictionary (1979) at 993.
I do not find on this record that any vehicles transported
coal, equipment or personnel closer than within 60 feet of the
edge of the Peabody bench. The difference between operating not
closer than 60 feet of the edge and operating within 10 to 12
feet of the edge is crucial. A distance of 60 feet is not
insubstantial. An interstate highway lane measures 12 feet.
If
no vehicle is ever shown to have been operated within 5 such
lanes of an edge, I cannot hold that the unused 60 foot portion
can nevertheless be somehow denominated as a "roadway."
In his post trial brief the Secretary asserts that in
deciding whether the travelway in question here is a roadway the
Commission should be guided by the principle that the Act and the
regulations should be construed liberally and expansively to
effectuate the Congressional purpose and promote the safety of
the miner. Hanna Mining Company, 3 FMSHRC 2045, 2048 (1981),
MSHA v. Westmoreland Coal Company 606 F. 2d 417, 420 (4th Cir.
1979).
I have no quarrel with the law cited by the Secretary. However, I find it inapplicable in this case. Peabody's uncontroverted evidence concerning the building and removal of berms
shows some hazards are involved in the process. Based on this
evidence I cannot conclude that the safety of the miners is promoted in the activities required to abate this citation.
The Secretary further relies on his several policy memoranda
interpreting this regulation (Exhibits P7 and P8). The difficulty with his memoranda is that it assumes facts not established
on the record.
In addition, the inspection manual and MSHA's
policy memorandum (Exhibits P7 and P8) do not clarify the problem.
The manual merely states that § 77.1605(k) applies to an "elevated haulage road"; further, such roadways are "roadways." The
policy memoranda recites that § 77.1605(k) applies to "all
elevated roadways" and berms are required on all exposed banks of
"elevated roadways."

2542

This 60 foot portion of the bench cannot now automatically
become a roadway because it has not been used to transport coal,
equipment and personnel. True, dozer operator Yazzie was at the
edge of the.bench but his duties included removing the coal. The
coal itself was in a condition of upheaval as a result of the
blasting.
I decline to defer to the Secretary's interpretation
of the regulation in these circumstances.
In support of his position the Secretary also relies on
Cleveland Cliffs Iron Company, 3 FMSHRC 291 (1981) and Rock
Valley Cement Block and Tile 2 FMSHRC 1906, 1914-1916; MESA v.
Peabody Coal Company, VINC 77-102-P.
The foregoing cases are clearly distinguishable from the
instant case.
In each of these cited cases there was some use
by vehicles, albeit minimal, of the travelway that the Secretary
felt should be bermed.
In Cleveland Cliffs the issue centered on whether certain
use of a road constituted hauling. The Commission held that the
term "hauling" includes conveying men, ore, supplies or materials
along elevated roadways where the roadways are used in the normal
mining routine, 3 FMSHRC at 293. As previously observed there
was no hauling of any type closer than 60 feet from the edge of
Black Mesa's bench.
In Rock Valley Cement, Block and Tile Judge Koutras rejected
the operator's argument that a roadway and the berm requirement
can only exist in circumstances which clearly show that the mined
materials are regularly hauled out of the mine along clearly
defined haulage roadways designed and regularly used for such
purposes. The cited decision is not controlling as there is no
roadway use whatsoever of the 60 foot area under discussion in
the instant case.
In Mesa v. Peabody Coal Company, the arguments concerned
whether the roadway in question was elevated and whether a
distinction existed between an access road and a haulage road.
The parties waived further briefs after the supplemental
hearing but the oral arguments were entered on the record.
The Secretary initially claims El Paso Rock Quarries, supra,
is controlling since identical standards are involved. This
point has been addressed and found to be without merit.
The Secretary further argues that the differences between
the El Paso case and this case are not crucial. Specifically, it
is contended the distance the Peabody trucks operate from the
edge of the bench relates to gravity and not to the fact of a
violation.

2543

I am not persuaded.
I refuse to apply the standard in a
vacuum. The Secretary bears the obligation to prove that the
activity he seeks to control is fairly within the terms of the
regulation.
The Secretary states that not requiring berms would lessen
the safety of the miners. This issue has been reviewed and found
to be without merit.
In its post-trial brief filed after the initial hearing
Peabody also raised certain issues. These require discussion.
Peabody asserted it should prevail because the regulation is
vague and lacks clarlty. Peabody further cites the failure of
MSHA to previously enforce the regulation at this site and
elsewhere as to coal seam benches.
The foregoing position is basically a plea in estoppel. But
it is established that estoppel does not apply against the
federal government. Cf. King Knob Coal Company, 3 FMSHRC 1417,
1421 (1981).
Peabody also argues that its time study (Witness Northington) and its video tape (Exhibit U) are not offered to prove
that MSHA's enforcement of § 77.1605(k) causes a greater hazard.
But it argues that if MSHA interprets the regulation in such a
way that dangers are increased then that interpretation is not
correct.
In short, Peabody agrees that berms on an elevated
roadway increase safety. But a coal bench is not a roadway and
if MSHA interprets it to be so then MSHA is wrong because there
is a clear increase in danger.
It is axiomatic that the greater
the exposure to the hazard, the more likely an accident.
Peabody's uncontroverted evidence establishes that the placement
of berms can be hazardous (Tr. 143). Further, the type of berms
MSHA requires here (some 58 miles) are transient. Their duration
can be as short as three hours (Tr. 144). But a berm on a bona
fide elevated roadway is not so transient (Tr. 83).
While Peabody's video tape and support testimony were
generally admissible it was basically a revisit to the diminution
of safety, or, as it is sometimes called, the greater hazard
doctrine.
Peabody apparently anticipated an adverse ruling because it asserts that Penn Allegh, 3 FMSHRC 1392 (1981), is not
controlling because the case dealt with explicit cabs and
canopies regulations. But, in the instant case, the parties are
arguing over a relatively vague standard.
I disagree. Peabody seeks to invoke the diminution of
safety, or the greater hazard doctrine.
In Penn Allegh the

2544

Commission refused to approve such an attempt to short-circuit
the Act. The Commission observed that when those situations
exist where the application of the standard diminishes, rather
than enhances, miners' safety the operator may petition the
Secretary of Labor for relief from the application of the
standard. The Act provides a set procedure for granting or
denying the relief sought. Penn Allegh at 1397. In addition,
there are detailed regulations governing the processing of such
petitions, 30 C.F.R. Part 44.
In sum, Peabody's evidence seeking to establish the
diminution of safety, or greater hazard doctrine, is rejected.
Peabody's further arguments are that MSHA failed to offer as
a witness the inspector who wrote the citation and in addition
failed to offer in evidence the citation itself. These arguments
lack merit.
Inspector Denning testified as to the issuance of
the citation (Tr. 28). He further authored Exhibit Pl, an extensive report of this fatality.
In Exhibit Pl MSHA entered its
finding as follows: "A berm was not provided on the elevated
outer back of the haulage road in pit 001-0 from Ramp C for a
distance of about 600 feet along the Blue seam coal bench, a
violation of Section 77.1605(k), 30 CFR."
Peabody's claim that MSHA's interpretation would shut down
the surface coal mine operations in the United States is
rejected.
Peabody has obviously not shut down this surface coal mine
operation at the Black Mesa Mine in Navajo County, Arizona.
Peabody's evidence and argument that the mines in the eastern
part of the United States would be shut down must await the detailed evidence in such a case.
In short, I decline to rule on a
hypothetical situation particularly here, where I fail to find a
violation.
For the reasons stated herein I conclude that Citation
2006837 and all penalties should be vacated.
Citation 2006838
In this citation the Secretary of Labor seeks a civil
penalty of $241 because Peabody's employee Yazzie failed to wear
a seat belt thereby violating the mandatory standard published at
30 C.F.R. § 77.1710(i) which provides:
Each employee working in a surf ace coal mine or
in the surf ace work areas of an underground coal
mine shall be required to wear protective clothing
and devices as indicated below:
(i) Seat belts in a vehicle where there is a danger
of overturning and where roll protection is provided.

Issue
Did Peabody violate the seat belt regulation?
Summary of the Evidence
All of the evidence relating to this citation was heard at
the initial hearing of the case in December, 1983. Neither party
sought to offer evidence on this subject at the supplemental
hearing.
MSHA's evidence shows that Yazzie was not wearing a seat
belt at the time of the accident (Tr. 28; Exhibit Pl). MSHA, in
its written report, concluded the failure to wear the seat belt
in the vehicle was a·contributing factor to Yazzie's death
(Exhibit Pl).
Peabody's mine superintendent indicated that the company requires that seat belts be worn. The workers are informed of this
requirement through task training, annual retraining, individual
contacts and general discussion (Tr. 153).
If an employee is caught not wearing a seat belt he is given
a warning.
If it occurs again he receives a written warning (Tr.
153).
Peabody's safety manager and its pit boss confirmed the
superintendent's testimony. Further, he indicated that the
company reinstalls seat belts if they are damaged or removed (Tr.
117, 120, 121, 129, 147). Equipment operators have been disciplined for failing to wear seat belts (Tr. 130, 148, 149). The
discipline graduates to suspension or discharge C~r. 130).
Discussion
The Secretary, in his post trial brief, is aware of the
Commission decision in Southwestern Illinois Coal Corporation, 5
FMSHRC 1672, (October 1983). But the Secretary claims the
majority decision violates the long line of strict liability
cases imposed by the Act. Further, the Secretary argues that the
minority view is more persuasive.
The Secretary's contentions are rejected.
I am obliged to
follow the majority view in Southwestern Illinois Coal
Corporation.
The Secretary apparently anticipated this ruling and he
argues that, in any event, Peabody has not satisfied the criteria
of North American Coal Company, 3 IBMA 93, cited in Southwestern
Illinois. The Secretary's argument is this: Pit boss Contratto
had never given a written seat belt warning to anyone and he was
unable to present actual examples of a warning.
I agree the

2546

evidence shows that Contratto, personally, had never given an
employee a written disciplinary notice for failing to wear a seat
belt (Tr. 148, 149). But the Secretary miscontrues the evidence
in the transcript at pages 149 and 150. Contratto testified that
there there have been written disciplinary actions. But he
hadn't brought such notices to the hearing (Tr. 148-150).
On this record witnesses Contratto, Johnson and Cook
establish that Peabody was diligent in the enforcement of its
seat belt regulation (Tr. 120, 121, 129, 130, 153, 154).
Southwestern Illinois criticized the operator because the wearing
of belts was delegated to the discretion of each employee. This
is not the situation here. The witnesses establish that Peabody
was diligent in its enforcement of the seat belt regulation.
I further note that no facts indicated that the company knew
Yazzie had his seat belt off at the time of the accident; if, in
fact, it was off (Tr. 29).
I reject the Secretary's arguments.
For the foregoing reasons Citation 2006838 and all penalties
therefor should be vacated.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portions of this decision, the following conclusions of law are entered:
1.

The Commission has jurisdiction to decide this case.

2. Peabody did not violate the mandatory standard published
at 30 C.F.R. § 77.1605(k), and all proposed penalties therefor
should be vacated.
3. Peabody did not violate the mandatory standard published
at 30 C.F.R. § 77.1710Ci), and all proposed penalties therefor
should be vacated.
ORDER
Based on the foregoing facts and conclusions of law I enter
the following order:
1. Citation 2006837 and all proposed penalties therefor are
VACATED.

2547

2. Citation 2006838 and all proposed penalties therefor are
VACATED.

·~

.

~

~J.~
~~~nis~~~!:

Law Judge

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

/blc

2548

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

NOV
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
GREGORY BROWN,
Complainant

Docket No. SE 84-51-D
MSHA Case No. BARB CD 84-14
No. 1 Mine

v.
A & L COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Darryl A. Stewart, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Complainant;
William R. Seale, Esq., Mitchell, Clarke,
Pate, Anderson & Wimberly, Morristown,
Tennessee, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
In a complaint filed with the Secretary of Labor on
January 27, 1984, Complainant Gregory Brown alleged that he
was ~ea.sstgned from the position of cutting machine operator
to.cutting machine helper on November 9,-1983, was transferred to the afternoon shift on November 21, 1983, and was
discharged on December 21, 1983, all because of activity
protected under the Federal Mine Safety and Health Act of
1977. On April 2, 1984, the Secretary filed an application
for temporary reinstatement on Brown's behalf. On April 3,
1984, the Commission's Chief Administrative Law Judge issued
an order directing Respondent to temporarily reinstate
Complainant in the position from which he was terminated or
in a comparable position with the same or equivalent work
duties. Complainant was restored to the payroll and later
returned to the job of cutting machine helper in accordance
with the order. On April 20, 1984, Respondent filed a petition for hearing on the order of temporary reinstatement.
Pursuant to notice, a hearing was held in Clinton, Tennessee

2549

on April 27, 1984. Following the hearing, I issued an order
that the temporary reinstatement order should remain in
effect based on my finding that the evidence failed to establish that Mr. Brown's complaint to the Secretary was
frivolously brought.
The Secretary filed his complaint with the Commission
on May 4, 1984. Respondent filed its answer on May 21,
1984.
On May 18, 1984, Complainant left work because of conditions he alleged were unsafe. Respondent treated his leaving as a voluntary quit. At the hearing, the parties agreed
that I should decide whether Complainant's leaving work on
May 18, 1984, was for activity protected under the Act, and
whether Respondent's refusal to put him back to work was
violative of section 105(c).
Pursuant to notice, the case was heard on June 12 and
13, 1984, in Clinton, Tennessee. Gregory Brown, Don
McDaniel, Henry W. Disney, Gary E. Lowe and Vernon Ray Hawn
test~fied on behalf of Complainant; Oscar Phillips, Howard
Goad, Jim Brubaker, Gary Phillips, and Arvil Daugherty
testified on behalf of Respondent. Both parties have filed
posthearing briefs. Based on the entire record, including
the record made at the hearing on the temporary reinstatement order, and considering the contentions of the parties,
I make the following decision.
FINDINGS OF FACT ~/
1. At all times pertinent to this proceeding,
Respondent was the operator of an underground coal mine in
Morg.an~County, Tennessee, known as the N.o. 1 Mine.
2. Complainant Gregory Brown was employed beginning in
about 1979 by the B & D Coal Company, a predecessor to A & L
Coal Company, as a cutting machine helper.
In 1980 or 1981,
he became a cutting machine operator. After a period of
time off work, he was reemployed as a cutting machine operator beginning March 15, 1981. In 1983, A & L Coal Company,
Inc., took over the mine from B & D. Complainant continued
working for the new company as a cutting machine operator.
1/ Separate transcripts were made of the hearing on the
temporary reinstatement order and the hearing on the merits.
Citations to the former transcript are designated herein as
TR(A); the latter are designated TR.

2550

3. On about November 2, 1983, while operating the
cutting machine at the subject mine, Complainant sustained
electrical shocks from the frame of the machine which had
become energized. Complainant told the mechanic Oscar
Phillips and the foreman Carlos Lester that the machine was
shocking him but they both apparently.refused to believe
him.
4. Arvil Daugherty, the principal owner of Respondent
and the operator of the mine, knew on November 2 or 3 that
the cutting machine "was getting hot," that is, it was
shocking people {Tr. 336).
5. The following day, November 3, Complainant noticed
that the frame ground had been removed from the cutting
machine.
He told Oscar Phillips that it was against the law
to run the machine with the ground removed.
Phillips
replied:
"You can run it or be replaced" {Tr. 17). The
machine, however, had been torn down to try to determine why
it failed to shut off.
It was not operated on November 3 on
the qay shift.
DISCUSSION
There is some conflict and confusion in the record as
to when the cutting machine frame became energized and when
the ground wire was removed.
I accept Complainant's testimony as to his being shocked when contacting the frame, and
as to his complaints to Phillips and Lester.
I accept
Phillips' testimony that the machine was "torn down" to
attempt to locate the problem on Thursday, November 3, 1983.
~. -on November 3, 1983, after his_~hift, Complainant
attempted to call the local MSHA off ice eo report the condition of the cutting machine, but it was closed. He asked
his wife to call the following day.
His wife called the
MSHA office on November 4, 1983, and an inspector came to
the mine the same day.

DISCUSSION
Respondent argues that Complainant's testimony that his
wife called MSHA is hearsay and insufficient proof that such
a call was made. There is no dispute that in fact a call
was made, which resulted in an MSHA investigation. Since
this is so, I accept Complainant's testimony that his wife
made the call as probative evidence that she did so.
Whether technically hearsay or not, the testimony is inherently trustworthy and is corraborated by other evidence.

2551

7. Don McDaniel, a Federal coal mine electrical inspector came to the subject mine on November 4, 1983, at about
9:00 a.rn.
Following an inspection he, issued an imminent_
danger withdrawal order under section 107Ca) of the Act,
because of 11 temporary splices in the trailing cable of the
cutting rnachirie, because the frame gr6und was removed from
the frame of the machine and the ground wire had 300 volts
of electricity corning from a short in the cable. The
machine was energized but was not being operated at the time
the order was issued. He also issued citations charging
violations of 30 C.F.R. § 75.603 and 3o·c.F.R. § 75.701-3
for the same conditions. When he arrived at the mine, the
inspector told Daugherty that he was there on a complaint
concerning the cutting machine. Daugherty asked him if it
was a man or a woman who made the complaint. Complainant
had previously told some of the miners that his wife called
MSHA.
8. The order and citations were terminated at 2:00 p.rn.,
on November 7, 1983, after a new trailing cable was installed
on tAe cutting machine and the ground wire was attached to the
machine. Respondent had ordered a new cable for the machine
on the day before the inspection.
9. During the period from January to November, 1983,
Respondent on a number of occasions had to repair or replace
the hydraulic pump on the cutting machine operated by
Complainant.
(The same machine was also operated by another
employee on the second shift). On about November 8, 1983,
the foreman Carlos Lester told the operator Arvil Daugherty
that the pump had quit working because it was too hot.
Daugherty ... decided to change Complainant to the job of
cutt.ihg ... machine helper "to see if it was-.hirn or the machine"
that was causing the pump problem (Tr. 323). He received
the same rate of pay ($8 per hour) as a helper that he
received as a machine operator. Th~ problems with the
hydraulic pumps did not continue after Complainant ceased
operating the cutting machine.
10. After about a week and a half as a helper on the
day shift, Complainant was transferred to the night shift as
a cutting machine helper. The night shift had been opened
about "the first of November" • • • "or October," 1983 CTR A
340-341). The reason it was opened was to produce more
coal, since Respondent had a contract to sell all the coal
it could produce.

2552

11. Complainant was laid off December 20, 1983, along
with three other miners, one of whom was Daugherty's son.
Daugherty stated that the lay off was caused by having a
stockpile of coal and "having extra men that we didn't need."
He stated that Complainant was selected as one of those laid
off because of the trouble with the cutting machine while he
operated it. Complainant worked at a:coal mine for a Clint
Johnson for 3 weeks and 2 days at a wage of $5 per hour
after he was laid off by Respondent.
12. On application of the Secretary, Complainant was
ordered reinstated by an order issued April 3, 1984, and he
was restored to the payroll and subsequently to the position
of cutting machine helper. He was paid $8 per hour.
13. Complainant continued working as a cutting machine
helper until May 18, 1984. On that date (a Friday on the
evening shift), four miners on the crew left the mine
because of "the way he (Gary Phillips, the acting foreman)
wanted to run the coal." The crew members thought it unsafe
to cut in a certain sequence but Phillips said "Well, it
doesn't matter, we're going to cut it to get the coal" (Tr.
56). Neither Complainant nor the other miners told the boss
why they were leaving the mine. Complainant also testified
that he had become ill from the fumes of a gasoline powered
chain saw which was used underground to cut timbers, but he
did not mention this to anyone.
14. On Monday, May 21, 1984, Complainant reported to
the mine off ice. Mr. Daugherty told him "You Quit, you
ain't got no job" (Tr. 58). Complainant did not tell
Daugherty why he left work on the previous Friday, but left
the premises.
15. About a week or 10 days after leaving Respondent's
mine, Complainant went to work part time (16 to 24 hours per
week) in a junkyard at a wage of $4 per hour.
STATUTORY PROVISION
Section 105Cc) of the Act provides in part:
Cc> Cl> 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

2553

because such miner, representative of miners
or applicant for employment has filed or made
a complaint under or related to this Act,
including a complaint notifying the operator
or the operator's agent, or the representative
of the miners at the coal or other mine of an
alleged danger or safety or health violation
in a coal or other mine, or because such
miner, representative of miners or applicant
for employment is the subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 ur because
such miner, representative of miners or applicant for employment has instituted or caused
to be instituted any proceeding under or
related to this Act or has testified or is
about to testify in any such proceeding, or
because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
(2) Any miner or applicant for employment or representative of miners who believes
that he has been discharged, interfered with,
or otherwise discriminated against by any
person in violation of this subsection may,
within 60 days after such violation occurs,
file a complaint with the Secretary alleging
such discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy
of the complaint to the respondent and shall
cause such investigation to be made as he
d€ems appropriate.
Such investigation shall
commence within 15 days of the Secretary's
receipt of the complaint, and if the Secretary
finds that such complaint was not frivolously
brought, the Commission, on an expedited basis
upon application of the Secretary, shall order
the immediate reinstatement of the miner pending final order on the complaint.
If upon
such investigation, the Secretary determines
that the provisions of this subsection have
been violated, he shall immediately file a
complaint with the Commission, with service
upon the alleged violator and the miner, applicant for employment, or representative of

2554

miners alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an
opportunity for a hearing Cin accordance with
section 554 of title 5, United States Code,
but without regard to subsection {a){3) of
such section) and thereafter shall issue an
order, based upon findings of fact, affirming,
modifying, or vacating the Secretary's
proposed order, or directing other appropriate
relief.
Such order shall become final 30 days
after its issuance. The Commission shall have
authority in such proceedings to require a
person committing a violation of this subsection to take such affirmative action to abate
the violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his
former position with back pay and interest.
The complaining miner, applicant, or representative of miners may present additional
evidence on his own behalf during any hearing
held pursuant to this paragraph.
ISSUES
1. Whether the demotion of Complainant in November,
1983, or his lay off in December 1983, were caused by
activity protected under the Mine Safety Act?
2. Whether Complainant's leaving work in May 1984, and
Respondent's refusal to take him back constituted a constructive discharge for activity protected under the Act?
3.
If either or both of the foregoing questions are
answered in the affirmative, to what relief is Complainant
entitled?
CONCLUSIONS OF LAW
1. Respondent was at all times pertinent hereto a mine
operator. Complainant was in Respondent's employ as a miner.
The parties are subject to the Act, and I have jurisdiction
over the parties and subject matter of this proceeding.
2.
In order to establish a prima facie case of discrimination under section 105Cc) of the Mine Act, a Complainant
bears the burden of production and proof to show Cl) that he
engaged in protected activity and (2) that an adverse action

2555

against him was motivated in any part by the protected activity. Secretary on behalf of Pasula v. Consolidation Coal
Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3rd Cir. 1981), and Secretary on behalf of Robinette v .United Castle Coal Co., 3 FMSHRC 803 (April 1981). In order
to rebut a prima facie case, an operator must show either
that no protected activity occurred or that the adverse
action was in no part motivated by protected activity.
If
an operator cannot rebut the prima facie case in this
matter, it may nevertheless affirmatively defend by proving
that Cl) it was also motivated by the miner's unprotected
activities, and (2) that it would have taken the adverse
action in any event for the unprotected activities alone.
The operator bears a burden of proof with regard to the
affirmative defense.
Haro v. Magma Copper Co., 4 FMSHRC
1935, 1937 (November 1982). The ultimate burden of persuasion that illegal discrimination has occurred does not shift
from the Complainant. Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC at 818 n. 20. The Supreme
Court approved the National Labor Relations Board's virtually
identical analysis for discrimination cases arising under the
National Labor Relations Act. NLRB v. Transportation
Management Corp., 76 L.Ed. 2d 667 (1983).
See also Boich v.
FMSHRC, 719 F.2d 194 (6th Cir. 1983) (approving the
Commission's Fasula-Robinette test).
3.

The November and December 1983 incidents

PROTECTED ACTIVITY
I have found (Finding of Fact No. 3) that Complainant
Brown told the mechanic and the section foreman on
Nove_Itlbet-2, 1983, that he was receiving __ shocks from the
frame of the cutting machine. These statements are clearly
safety complaints and constitute activity protected under
the Act. The following day, Complainant told the mechanic
that it was against the law to run the cutting machine with
the ground wire removed.
I conclude that this statement was
protected even though it was made to the mechanic who was
not technically a management employee. The telephone call
to MSHA made by Complainant's wife at his request to report
the condition of the machine was also protected activity
(Finding of Fact No. 6). The telephone call resulted in an
MSHA inspection, and the issuance of an imminent danger
closure order and a citation.
Insofar as Complainant
initiated and was involved in these activities, he was
involved in activities protected under the Mine Act.

2556

ADVERSE ACTION
On November 9, 1983, Complainant's job was changed from
cutting machine operator to cutting_machine helper.
Respondent paid all its miners the same wage and thus
Complainant did not suffer a reduction in pay when his job
was changed. However, the job was less desirable and
required less skill.
I conclude that the job change constituted adverse action. On about November 18, 1983,
Complainant was transferred from the day shift to the evening shift. He continued to work as a cutting machine helper.
Although Complainant found the evening shift less desirable
for personal reasons, I cannot conclude that the job change
in any way downgraded his position.
I therefore conclude
that it did not constitute adverse action. On December 21,
1983, complainant was laid off. This clearly constituted
adverse action.
CAUSAL CONNECTION
Complainant Brown was downgraded on November 9, 1983,
and laid off on December 21, 1983. Were either or both of
these adverse actions motivated in any part by the protected
activity described above? Respondent in the person of
Daugherty was aware of the unsafe condition of the machine
(Finding of Fact No. 4). Respondent in the person of section foreman Lester and mechanic Phillips knew that Gregory
Brown was complaining about the unsafe condition of the
machine. When the inspector came to the mine, Daugherty
asked him whether "a man or a woman called him." Daugherty
had no explanation for this rather odd question except
"curiosity" (Tr. 339).
I conclude (1) that Daugherty wanted
to ~OQW..who made the complaint and (2) -~hat he thought an
answer to his question (which was not given) would give him
a clue. Although there is no direct evidence of this, I
infer in part from Daugherty's evasive answers to the
question at the hearing on the temporary reinstatement order
as to whether· Daugherty inquired as to the source of the
call to MSHA (Tr. A 74-75), that Daugherty believed Gregory
Brown had the call made to MSHA. The withdrawal order was
terminated November 7, and Complainant was demoted to helper
on November 8, 1983.
I conclude that one reason for the
demotion was the protected activity referred to above.
Complainant therefore has made out a prima f acie case of
discrimination under the Mine Act for this demotion. On
December 21, 1983, Complainant and three others were laid
off Cone of them, Daugherty's son, was call back after the
Christmas vacation) ostensibly because too much coal was

2557

being stockpiled. Respondent is a non-union mine and does
not have any seniority rules. Daugherty's explanation of
how he determined which employees to lay off is confusing
and not entirely convincing.
I conclude that here too_he
was motivated in part to lay off Gregory Brown because of
Brown's protected activity.
The more difficult question in this case is whether the
evidence shows that Respondent would have taken the adverse
action against Complainant for unprotected activity alone.
I have accepted as factual Respondent's contention that he
had unusual problems with hydraulic pumps on the cutting
machine while Complainant was operating it, and these
problems disappeared after Complainant was taken off the
machine.
(Finding of Fact No. 9). Although Complainant was
apparently regarded as a good worker by his foreman (who was
not called as a witness by Respondent), it was reasonable
for management to remove him as machine operator "to see if
it was him or the machine" which caused the trouble.
I conclude with respect to the removal of Complainant from his
machine operator's job, Respondent would have taken this
action for unprotected activity alone. What about the
lay~of f?
When asked why he laid off Complainant rather than
some other employees, Daugherty answered "well, I had went
almost trouble-free with the cutting machine for almost a
month and maybe a little longer, was'nt having no more
troubles. He had cost me a lot of money in the past" (Tr.
326). There is some evidence attempting to show that
Daugherty was also motivated in part because Complainant's
sister was responsible for the jailing of Daugherty's son.
I do not accept this latter evidence as showing motivation
for the lay off.
I do not believe Daugherty's rather
evasive statement that it was a motive. However, the evidenGe-c~ncerning the problems with the-{)ump shows a reasonab~e and credible motivation, and I accept it as establishing
that the lay off was motivated in part by Complainant's
unprotected activities. Much more difficult to answer is the
question whether the adverse action would have been taken for
the unprotected activities alone. The burden of proving what
is an affirmative defense is on Respondent. Considering the
confusing and conflicting testimony of Daugherty, I conclude
that it has not carried its burden.
I conclude therefore,
that the evidence establishes that Complainant was laid off
on December 20, 1983, in violation of section 105(c) of the
Act.

2558

4.

The May 18, 1984, incident

PROTECTED ACTIVITY
Complainant's leaving work on May 18, 1984, resulted
from a reasonable, good faith belief that continuing to work
as directed would be unsafe. Theref0re, his leaving work
was protected activity. Pasula, supra. However, an
employee who leaves work for safety reasons is required to
"communicate or at least attempt to communicate, to some
representative of the operator his belief in the safety or
health hazard at issue." Secretary/Duhmire and Estle v.
Northern Coal Company, 4 FMSHRC 126, 133 (1982).
In the
case before me, the evidence shows that neither Complainant
nor any of the other miners who walked off the job with him
made any attempt to tell management of their safety concerns.
Complainant had a pending case with the Commission at the
time, was represented by the Solicitor of Labor, and had
been reinstated to his job by a Commission order.
He
clearly cannot be heard to plead ignorance of his rights and
responsibilities under the Act.
ADVERSE ACTION
When Complainant returned to the mine the following
work day, he was told by the operator, Daugherty, that he
had quit. This is adverse action.
However, he again failed
to make any reference to his safety complaints.
I conclude
that no violation of 105(c) of the Act was shown because of
Complainant's failure to communicate his safety concerns
either before leaving the mine or when the adverse action
occurred. The complaint of discrimination based on the
May 18-21 incidents must therefore be dismissed.
RELIEF
Based on the above findings of fact and conclusions
of law, I conclude:
(1) Respondent did not violate
secton 105(c). of the Act by assigning Complainant to a different job on or about November 8, 1983; (2) Respondent violated section 105(c) of the Act in discriminating against
Complainant by laying him off on December 20, 1983;
(3) Respondent did not violate section 105(c) of the Act in
treating Complainant's leaving the job on May 18, 1984, as a
voluntary quit and refusing to rehire him on May 21, 1984.
Complainant is entitled to back pay from December 21, 1983,
to the date he was rehired pursuant to the order of temporary reinstatement with interest thereon based on the formula
set out in the case of Secretary/Bailey v. Arkansas-Carbona,

5 FMSHRC 2042 (1983). Any wages received during this period
should be offset against his entitlement.
ORDER
Respondent is ORDERED to pay Complainant back wages
from December 21, 1983 to the date of his reinstatement pursuant "to Commission order with interest thereon as set out
above, less 'any interim wages received in other employment.
Respondent is ORDERED·to expunge the employment records of
Complainant of all references to his discharge on
December 21, 1983.
Counsel are directed to confer and attempt to agree on
the amount due pursuant to the above order and notify me
within 30 days of their agreement or inability to agree.
This decision is not final until a supplementary order is
issued on back pay and interest.
The complaint of discrimination based on the May 18-21,
1984, incidents is DISMISSED.

J

.Yl3~ '-(~ !'/\_

(l-tAL£-£
t'
James A. Broderick
Administrative Law Judge

Distribution:

Darryl A. Stewart, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Wil,Liam R. Seale, Esq., Mitchell, Clar~e_, Pate, Anderson
Wimberly, P.O. Box 1066, Pless Professional Building,
Morristown, TN 37814 (Certified Mail)
/fb

&

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

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

22041

1984
CIVIL PENALTY PROCEEDING
Docket No. LAKE 82-35-M
A.O. No. 21-00820-05031 V

v.
Minntac Mine
UNITED STATES STEEL
CORPORATION,
Respondent
UNITED STATES STEEL
CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDING
Docket No. LAKE 82-6-RM
Order No. 486720; 9/10/81
Minntac Mine

LOCAL UNION NO. 1938,
DISTRICT 33, UNITED
STEELWORKERS OF AMERICA,
Representative of the Miners
DECISION ON REMAND
Before:

Judge Broderick

On August 30, 1984, the Commission reversed my finding
that there had not been an intervening clean inspection of
the subject mine between the issuance of the contested
104(d) (2) order issued on September 10, 1981, and the prior
104(d) (1) order issued on March 31, 1981. However, the
Commission affirmed my finding that the operator violated th~
mandatory standard involved and remanded the case for modification of the order based on new findings concerning whether
the violation was caused by the operator's unwarrantable
failure to comply with the standard, and concerning whether
the violation was significant and substantial. The Commission
decision states (page 8, fn. 3) that the contested order

2561

issued under section 104(d) (2) should be modified to a
section 104(d) (1) order, a 104(d) (1) citation or a 104(a)
citation. However, as I read 104(d) (1) and 104(d) (2), a
104(d) (1) withdrawal order (issued at this mine on
March 31, 1981) can only be followed by a 104(d) (2) order
(assuming no intervening clean inspection) , and not by a
104(d) (1) order. Where a clean inspection has intervened
as in this case under the Commission decision, a violation
can only be cited as a 104(a) citation or a 104(d) (1)
citation.
Following remand, I issued a briefing schedule order
on September 6, 1984. Both parties have filed briefs.
Based on a reconsideration of the entire record, the
Commissions decision on review, and the contentions of the
parties, I make the following decision.
THE VIOLATION
The standard found to have been violated in this case
requires that "safety belts and lines shall be worn when
men work where there is danger of falling." Therefore,
the violation ipso facto involves a safety hazard, namely
the danger of falling.
UNWARRANTABLE FAILURE
My prior decision concluded that the violation was
caused by the unwarrantable failure of the operator based
on the fact that it was committed by a foreman who represented management.
The Commission found my conclusion to
be insufficiently explained for meaningful review by the
Commission.
The most complete discussion of the meaning of the
term "unwarrantable failure" is contained in the Interior
Board of Mine Operations Appeals decision in the case of
Ziegler Coal Company, 7 IBMA 280 (1977). The Board said
at pages 294-295:
"Usually, where liability is dependent
upon a determination of fault with regard to a
person's knowledge, the fault typically concerns
the person's knowledgeability as to matters of
fact.
Given the foregoing and inasmuch as the
literal language of section 104(c) [of the Coal
Act] implies that the fault encompassed in the
'unwarrantable failure' requirement is of the
typical kind, we are of the opinion that both

2562

the conferees and the House Managers were talking
about an operator's failure to abate conditions
or practices the operator knew or should have
known existed and therefore should have abated
prior to discovery by an inspector."
[Emphasis
in the original.]
Applying this rather ponderous language to the facts of
this case, the foreman did not wear a safety belt "where a
danger of falling should have been recognized under the
circumstances" (Commission Dec. p. 4). The foreman asserted
that the practice was not dangerous.
The violation by its
very terms involved a danger.
I found that it occurred and
the Commission affirmed.
The foreman knew of the exposure
{he could have fallen 18 feet) . In the words of the Ziegler
decision, this was a matter of fact.
He should have known
of the danger. Therefore, the foreman knew or should have
known that the violative conditions or practices existed or
occurred.
Is the knowledge of the foreman imputable to the
operator?
In Pocahontas Fuel Co., 8 IBMA 136, 147-8 (1977),
aff 'd Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (1979),
the Board found unwarrantable failure to comply on the
basis that "the knowledge or constructive knowledge" of a
preshift examiner was "properly imputable to Pocahontas."
In the case of Secretary v. Ace Drilling Co., 2 FMSHRC
790 (1980), the Commission stated (in a penalty case) at
pages 790-1:
"In determining liability for conduct regulated
by the Act, the actions of the foreman cannot be separated
from those of the operator. The foreman acts for the
operator."
I conclude that where a foreman knew or should have
known .that he was engaging in a practice, which practice is
found to be a violation of a mandatory standard, the operator
can be found to have unwarrantably failed to comply with the
standard.
SIGNIFICANT AND SUBSTANTIAL
rn my prior decision, I did not make findings on the
question whether the violation was significant and substantial, because such findings are unnecessary in determining the propriety of a 104(d) (2) order. However, they
are necessary in determining whether a 104(d) (1) citation
or a 104(a) citation should have been issued. My decision

2563

found that when the foreman exited the cooler, there were
two openings through which he could have fallen to a dump
zone more than 18 feet below.
I concluded that there was
"a danger of falling." As I previously explained the
violation by its terms implies that it could contribute
to a hazard. The hazard (falling 18 feet) clearly is
reasonably likely to result in serious injury. See
Secretary v. Mathies: Coal· Company 6 FMSHRC 1 (1984).
Therefore, I conclude that the violation was of such
nature as could significantly and substantially contribute
to the cause and effect of a mine safety or health hazard.
ORDER
Based upon the above findings and conclusions, IT IS
ORDERED that Order No. 486720 is MODIFIED to a 104(d) (1)
citation.
The findings, conclusions and order related to
the civil penalty proceeding in my decision of June 8, 1982,
were not directed for review, and therefore are not part of
the order of remand.

J

;/c~.5 ~IJY!Jbr ~j_
James A. Broderick
Administrative Law Judge

Distribution:
Robert A. Cohen, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Louise Q. Symons, Esq., United States Corporation,
600 Grant Street, Room 1580, Pittsburgh, PA 15230
(Certified Mail)
Clifford Kesanen, Safety Chairman, Local Union 1938, United
Steelworkers of America, 307 First Street North, Virginia,
MN 55792 (Certified Mail)
/fb

2564

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

22041

NOV 9 1984
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 84-51-M
A.C. No. 21-02824-05501

v.
Cap's Pit
TRI-CITY PAVING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On November 7, 1984, the Secretary filed a motion to
dismiss and approve a settlement agreement involving the two
alleged safety violations involved in this proceeding.
The violations were originally assessed at $3,300 and
the parties propose to settle for $2,150.
The withdrawal order charging a violation of 30 C.F.R.
56.3-5, and the citation charging a violation of 30 C.F.R.
56.3-1 both were issued following an investigation of a
fatal accident, in which a front-end loader operator was
killed when the bank under which he was working caved
engulfing him and the loader with material from the pit
wall. The order charged Respondent with working under a
loose and dangerous bank and was originally assessed at
$3,000.
The citation charged Respondent with failing to
establish standards for the safe control of pit walls.
It
was originally assessed at $300.
§
§

Respondent is a small operator and has had no history
of violations in the 24-month period preceeding the order
and citation herein involved.
The motion states that the proposed penalty reductions
(to $2,000 and $150) are justified because the Respondent's
negligence was deemed moderate. The operator of the front-end
loader had put himself in a dangerous position by working too

2565

close to the highwall. He had previously been advised at
safety meetings not to move too close to the highwall. The
violation of 30 C.F.R. § 56.3-1 was considered a technical
violation and would not in itself contribute to a hazard.
I accept the representations in the motion and conclude
that the settlement is in the public interest.
Therefore, the motion is GRANTED and Respondent IS
ORDERED to pay the agreed amount, $2,150 within 30 days of
the date of this order.

J

(Uv/J_/- 3

·

J/Jr!l Jv/v--tf

James A. Broderick
Administrative Law ,Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
Timothy H. Chirhart, Esq., Hollihan & Neils, Executive Plaza
Building, 1011 ~econd Street North, Box 307, St. Cloud, MI
56302 (Certified Mail)

/fb

2566

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

'-' 14 1984

CIVIL PENALTY PROCEEDING

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

Docket No. VA 84-17
A.C. No. 44-00246-03502A-A-59

v.

J W L Construction Co., Inc.,
Pocahontas No. 1 Mine

JOSEPH B. NECESSARY,
Respondent
DECISION
Appearances:

Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
William B. Talty, Esq., Tazwell, Virginia, for
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding brought by the petitioner
against the respondent pursuant to § llO(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(c), charging the
respondent an alleged "knowing" violation of mandatory safety
standard 30 C.F.R. § 77.200. At the time of the alleged
violation, the respondent was employed by the J W & L Construction
Company, an independent contractor doing some repair work
on a mine refuse storage bin located at a mine owned and
operated by Island Creek Coal Company. Respondent was the site
foreman in charge of the repair work. Following a structural
collapse of the structure, resulting in the death of
three miners, and following an investigation by MSHA, the
contractor, mine operator, and the named respondent in this
case were charged with violations.
On November 9, 1982, a section 104(d) (1) citation, No. 2043640,
was issued to both the mine operator and the indepepdent contractor.
Both were charged with a violation of 30 C.F.R. § 77.200, and the
condition or practice cited is described as follows:

2567

The mine refuse storage bin and supporting
structure for the aerial tramway system
was not maintained in good repair to prevent
accidents and injuries. Repair and maintenance
work performed by an independent contractor,
J W & L Company, Inc., during miners' vacation
(June 20 - July 11, 1982) resulted in the
facility being left structurally unsound because
two of the six bin support columns (stub columns)
were not positioned during reinstallation to
align with the main support columns. A resultant
structural collapse of the facility occurred on
August 24, 1982, fatally injuring three miners.
James D. Lafon and Joe Necessary were the responsible
officials for J W & L Company, Inc., during the
repair work. Joe Shortt (plant foreman) and
Mike Cole (Assistant maintenance foreman) were
the responsible officials for the Virginia
Pocahontas Preparation Plant facilities during
the repair work.
This citation is issued jointly
to both the production operat6r.(Citation No.
2043639 dated 11-9082) and the independent
contractor (Citation No. 2043640 dated 11-9-82)
for the violation described above.
On or about January 16, 1984, pursuant to 30 C.F.R. Part 100,
MSHA's Office of Assessments served the respondent with a
proposed civil penalty assessment of $1,000 for the foregoing
violation under section llO(c) of the Act.
Respondent was charged
with knowingly authorizing, ordering, or carrying out the
independent contractorts violation of 30 C.F.R. § 77.200, as
cited in the aforementioned citation. He contested the citation,
and MSHA filed the instant proposal for assessment of civil penalty
against him.
According to the information furnished by MSHA's counsel
during the hearing in this case, Island Creek Coal Company,
the operator of the Pocahontas Mine, has paid a civil penalty
assessment in the amount of $240, in satisfaction of the citation
(Tr. 4). Counsel also advised that in a proceeding before
Commission Judge Gary Melick, Docket VA 8~-47, the Judge on or
about January 13, 1984~ approved a settlement calling for
the contractor to pay "a civil penalty assessment of $9,000
in satisfaction of the citation (Tr. 5, 25).
Issues
Whether respondent Joseph B. Necessary, acting as an agent
of the contractor mine operator, knowingly authorized, ordered, or

2568

carried out the aforesaid violation under section llO(c) of
the Act, and, if so, the appropriate civil penalty which should
be assessed against him individually pursuant to section llO(a)
of the Act.
Additional issues raised by the parties are identified and
discussed in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30

2.

Commission Rules, 20 C.F.R.

u.s.c. § 801 et seq.

§

2700.1 et seq.

3. Sections llO(a) and llO(c) of the Act. Section llO(a)
provides for assessment of civil penalties against mine operators
for violations of any mandatory safety or health standards,
and section llO(c) provides as follows:
Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates
or fails or refuses to comply with any order
issued under this Act or any order incorporated
in a final decision issued under this Act, except
an order incorporated in a decision issued under
subsection (a) or section 1-0S(c), any director,
officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation,
failure, or refusal shall be subject to the same
civil penalties, fines, and imprisonment that
may be imposed upon a person under subsections (a)
and (d) (emphasis added) .
30 C.F.R. § 77.200, provides as follows:
All mine structures, enclosures, or other facilitires
(including custom coal preparation) shall be maintained in good repair to prevent accidents and
injuries to employees.
An "agent is defined in Section 3(e)! of the Act (30 U.S.C.
802(e)) to mean "any_person charged with responsibility for
the operation of all dr part of a coal mine or other mine
or the supervision of the miners in a coal mine or other mine."
§

Stipulations
The parties stipulated as to jurisdiction, and the fact that
the respondent was employed by the independent contractor

2569

in question as a foreman during work performed by the contractor at the mine site in question in June and July 1982.
They also agreed that the refuse bin structure in question
collapsed on or about August 24, 1982, and that following an
MSHA investigation, the respondent was cited for the violation
which is the subject of this case (Tr. 6-7).
The parties stipulated as to the authenticity of MSHA's
official report.of investigation, exhibit P-1, and they agreed
that the citation issued by MSHA Inspector Jerry Wiley in
this case was the result of the investigation conducted by
MSHA (Tr. 7). MSHA's counsel pointed out that the report
(exhibit P-1), was issued on August 24, 1982, but that a final report
was not released until March 2, 1983, after the citation issued.
Counsel explained that the August 24, 1982, "preliminary report,"
including the date contained therein, formed the basis for
the issuance of the citation by Mr. Wiley.
Counsel also indicated
that Mr. Wiley had no'independent knowledge of the facts
leading to the collapse, other than the report of investigation,
and the parties agreed not to call him as a witness in this
proceeding since the author of the report, MSHA Inspector
Dale Cavenaugh, would testify (Tr. 9-10).
Petitioner's Testimony and Evidence
Ernest M. Cole, Yard Foreman, Island Creek Coal Company,
testified that at the time of the accident he was employed
at the mine as the Assistant Outside Maintenance Foreman. During
the miners' vacation period in 1982, he was responsible for
maintenance and repair work at the preparation plant, and
he confirmed that he occasionally observed the work being
performed on the bin structure in question. He confirmed
that he was aware of the fact that the top of the bin had been
removed for repairs, and that during the removal process the
crane used to lift it off collapsed. He also was aware of
the fact that Mr. Necessary was the site foreman for the
J W & L company performing the work on the bin (Tr. 33-37).
Mr. Cole stated that he was concerned that the repair
work would not be completed by the contractor by the time
miners' vacation ended, and he indicate0 ·that once the bin
was removed and on the ground, work was not progressing during
the second week (Tr. 37). Mr. Cole confirmed that the bin
stub columns were welded to the structure while it was on
the grou~d, and he indicated that he was aware of no engineers
from the contractor or Island Creek reviewing the work being
performed by the contractor (Tr. 38).
Mr. Cole stated that once the bin was replaced, he went
to the top to make sure that the belt was operable so that

2570

the preparation.plant could operate. He did not believe that
he had any responsibility to inspect the structural integrity
of the work performed by the contractor, and his concern
was that the belt at the top of the bin was operational. He
confirmed that prior to the repair work, the bin had a large
hole in it which caused some spillage of waste materials (Tr. 41).
Mr. Cole identified exhibit P-1 as a copy of MSHA's
accident investigation report, and he confirmed that he is
the same Mike Cole ref erred to in the report. He described
what he saw when the structure collapsed (Tr. 42-44).
He confirmed that any knowledge he had that any of the bin
support columns were misaligned came from his reading of MSHA's
report (Tr. 45), and he had no prior personal knowledge that
the support columns were misaligned (Tr. 46).
On cross-examination, Mr. Cole described the hole in
the bin, and he confirmed that spillage was cleaned up with
an end loader.
He also confirmed that there was a concrete
pad at the base of the bin structure, and that it was not muddy, but
it would be wet on occasions when the plant was washed down
(Tr. 56). He stated that he was not aware of the condition
of the bottom half of the bin structure prior to the repair
work (Tr. 56-57).
Mr. Cole indicated that the bin was used to store refuse
such as rock and slate which had been removed from the coal.
He explained the procedures used to process the coal through
the preparation plant and into the bin (Tr. 58-60). He also
explained that "filter cake," or the finer particles from
the refuse, finds itself into the bin, and it is either wet
or dry (Tr. 62). He stated that' he is not aware of any "proper
procedure" for freeing up such material which may "hang in"
the bin, and he confirmed that the only way he is aware of
for freeing the material is to "beat on" the bin (Tr. 63).
When this is done, the material falls through the bottom
of the "cone shaped" end of the bin onto a feeder and into
a hopper (Tr. 64). He confirmed that "beating on" the bin
has been a long standing method for freeing such material
from the bin (Tr. 64-65).
Rufus W. Young, welder, J W & L Construction Company,
testified that he and;Mr. Larry Stewart worked on the bin
which is the subject of this case. He described the work
performe~ in removing the top of the bin structure, and he
indicated that each of the six stub columns were cut through
with a welding torch in order to remove the top of the bin.
He indicated that the top of the bin which was removed was
cut off above the support columns at the top of the ring
which is at the bottom cone portion of the bin. He stated that

2571

the main columns supporting the structure from the ground
up to the location where the bin was cut off were large
columns which did not continue up to support the top
of the structure. The upper support columns were smaller
four or five inch columns different from the bottom ones
(Tr. 7 3) .
Mr. Young stated that Mr. Necessary was supervising
the work he and Mr. Stewart were performing. He also
confirmed that this was the first time he had ever taken a
top off a bin structure and replaced it after repairs, and
he indicated that in· his past experience the entire bin
structure was simply replaced.
The job for Island Creek
was the first time he had ever taken off the top of a bin
above the funnel. He confirmed that the new portion of the
bin which he worked on had been prefabricated in two pieces,
and that he and Mr. Stewart simply welded them together
while it was on the ground. They also added the stub columns
which had been cut off the old bin. Mr. Young was not present
when the old bin was lifted off and lowered to the ground
(Tr . 7 4- 7 6) .
Mr. Young explained how the six stub columns were welded
to the bin structure while it was on the ground, and he
indicated that measurements and "plumbing" were done to
insure that they were on straight. This work was finished
late in the second week of the vacation period. Once the
columns were on, the crane lifted the bin in place on top
of the structure, and once one of the columns was aligned,
he and Mr. Stewart began the welding process from inside the
bin, working their way around. He described the process
as follows (Tr. 79-82):
Q. When you put that bin in place with
six columns, you assumed that the other
five were in line because this one was
in line?
A. Yes, I would say that's what we done
because there was no way of setting it and
telling because it wasn't a perfect circle.
We had to draw it in in places.
In some
places it would stick out, and in some places
it wou~d be on the inside.

Q.

It did not quite fit; did it?

A. No, not perfect.
I have never put anything together like that that did [sic].

Q.

I am sorry, I didn't get your last answer.

2572

JUDGE KOUTRAS: He said he has never
known one to fit in perfect. He tried
to align it the best he could.
Is that what you said?
A.

Yes, sir.

Q. How was the new bin marked for the
columns to be put on? This is when it was
down on the ground.
A. We just got the center of one column and
started with it and marked the rest of them
as we went around, mark the centers.

Q.

Was the mark put on the bin for the center
of the column or the edge of the column?

A. Well, we got the center of the column
and then we measured the thickness of the
beam and marked the edges so we could see.
If it had been the center, you wouldn't
have able to put it on there right, so we
marked it for the edges of the beams.

Q. When you set the new bin on top of the
old columns, you only lined up one column?
A. Well, that's all we could line up at the
time.

Q. After it was put in place, lined up on that
one column, did the crane disconnect from the
bin and you started your welding process?
A. No, sir. We left the crane hooked to it
until we worked it around and got it all ·.the
way around.

Q. The crane was in place holding the bin
while you did the weldino/ around the structure?
A.

O~

the inside.

Q.

On the inside?

A.

Yes, sir.

Q. So you got inside the bin and you welded a
circle around the bin where it joined with the
cone?

2573

A.

Yes, sir.

Q. At that point you had not done anything with welding the columns; right?

A.

No, sir.

Q.

So the inside was fully beaded?

A.

Yes~

sir.

Q. Did the crane go away then after you
finished that?
A.

To the best of my recollection it did.

Q.

Is this one of the long days that you worked?

A.

That we welded?

Q.

Yes.

A.

Yes, sir.

Q.

Putting the bin in place.

A.

Yes, sir.

Q.

Is that the day you worked about 20 hours?

A.

Probably so.

Q.

You welded the whole inside?

A.

Yes.

Q.

Did you start welding the outside that day?

A.

No, sir.

Q.

You went home when you finished on the inside?

A. Yes, sir, we went home when we got the inside
made up and the belt put back on top and they started
running rock through. They started it up. We did
the work on the outside while they was running.
Q.
So the actual welding of the stub columns took
place --

A.

While they was running rock in the bin.

Q.

After miners' vacation?

A.

Yes.

2574

Mr. Young explained the work which was performed on
the outside of the bin once the inside work was done, and
his testimony is as follows (Tr. 83).
Q. You did another weld on the outside
of the bin all the way around?
A.

Yes.

Q. How did you match up the columns,
the stub columns?
A. They were matched when they come
around, all except one was a couple inches
off. One of the two bins weren't the same
size. When we drawed it around it was a
slight bit larger, so it throwed one of the
columns off a couple of inches, to the best
of my remembrance.
Q.
Did you bring that to Mr. Necessary's
attention?
A.

Yes, sir, later in that week we did.

Q. Did you do the welding of that column before
he knew about it?
A.

I don't recall.

I am not sure.

Mr. Young was shown a copy of a signed statement he
gave to MSHA's special investigator on July 9, 1984, and he
acknowledged that it is his statement (Tr. 84; exhibit P-2).
A portion of the statement was read into the record, as follows
below, and Mr. Young acknowledged that it was true (Tr. 85-86):
We started welding on the top part of the
bin and when we got all the way around to the
last column, I, the other welder, Stewart and
Gillespie and the foreman Joe Necessary noticed
the top H-beam was off center about two inches.
Mr. Young explained that he noticed the columns were
out of line the week after the vacation period ended, and
he explained further as follows (Tr. 86-89):
Q. What I am trying to understand is when did
you first notice that they were out of line?
The week after the vacation was over?
A. While we was working on the outsides of
the bin, we noticed a bludge inside the bin.

2575

Q.
In other words, by the time the
miners' vacation was over this job had
not been completed yet; is that right?
You were still working on it, the miners
were back and they were running material up
this belt?

A. Yes, they were running material up the
belt while we were working.
Q. You were working doing what around the
outside of it?
A.

Welding around the outside.

Q.

Welding what?

A. Welding the top part of the beam to the
support ring and the column.
Q. What was holding this bin up while they
was dumping?
MR. FITCH:

Interweld.

THE WITNESS: We made a complete weld on the
inside all the way around. They started up, and
we went on the outside and started to work on
the outside of the bin.
BY JUDGE KOUTRAS:
Q.
It was when you were doing this work on
the outside to finish this job is when you saw
that one of the H-beams -A. Yes, sir, that's when we were out there.
That's the only time we were in a position to
see it.

Q.

That is the first tima you noticed it?

A.

Ye~;

sir.

Q. How does it come to pass that Mr. Stewart
and Mr. Gillespie and Mr. Necessary were all there
and noticed it too?
A. We were just working there and we talked
about it, we noticed it
Q.

About two inches?

2576

Q.

One column?

A. To the best of my memory, one column about two
inches.
Q.
Then the statement goes on to say:
"We discussed
the condition with Necessary and he told us ~o
put a plate to help support the bin. We put the
plate on after they had already started putting
rock in the bin. Necessary was the only one I saw"
What is that next word?
MR. FITCH:

Inspect.

BY JUDGE KOUTRAS:

Q.
"Inspect the bin after the work was completed."
So after you noticed that it was two inches off,
this one column, what is this business about a plate?
Q. Well, we would have had to put a plate in anyway
because where we burnt we had to straighten it up.
There would have been a gap between the two beams.
We would have had to put the plate in there anyway.
Q.
What you said in this statement to the man who
took it from you on July 9th, is as you remember
it back when you finished the job; is that correct?

A.

Yes.

Mr. Young explained how he welded half-inch plates under
the column which was two inches off center, and he referred
to Drawing 4, which appears at page 12 of MSHA's accident
report to explain how the plates were welded to the column. He
also testified as to certain "scrapes" which appear on the
pictures shown on page 13 of the report, as well as the seams
and bolt holes which appear in the photographs (Tr. 98-100).
Mr. Young could not recall whether plates were welded on all
six support columns, "or just the ones that had the gap in
it where we couldn't weld it" (Tr. 102). However, he conceded
that "it was possible" that more than oti~ plate was welded
on (Tr. 104).
Mr. Young stated that to the best of his recollection
only one of the stub columns was off two inches, and since
it was already welded onto the bin, there was nothing that
could have been done to move it over (Tr. 109). The column
was left in that position when the plates were welded on
(Tr. 117). The plates simply filled the gap under the column,
and had nothing to do with it being two inches off center
(Tr. 118) .

2577

Mr. Young stated that during the course of his welding
work on the bin structure, he did not do any bolting work,
and he reitereated that at no time were any of the stub
columns off center by eight inches (Tr. 126). He conceded
that when the repair work was completed, the one column was
still two inches off center (Tr. 126).
On cross-examination, Mr. Young stated that at no time
during his work on the bin structure was he ever rushed or
pushed to work faster, and he believed he had adequate time
to do the work as he believed he should do it (Tr. 128).
He stated that during the time he was performing work on the
structure, some of the concrete footers at the base of the
structure were under water. He also indicated that he did
not notice whether all of the "X" cross or lateral support
beams at the base of the structure were in place (Tr. 129).
Larry S. Stewart, testified that he is employed by J W & L
Construction Company as a welder, and he confirmed that he
participated in the repairs made to the bin in question in
this case. He confirmed that he welded the old stubs which
had been taken off the old bin to the new bin while it was
on the ground.
He stated that he and Mr. Young measured
the old beams while the bin was on the ground, and that
Mr. Necessary was present and observed how these measurements
were made. He described how this was done and confirmed
that once the columns were welded to the new bin, he helped
install it to the structure and helped nline it up" (Tr. 131-133).
He described what he did as follows (Tr. 135-145):
A. Well, we was -- a couple of us like was
on one side and maybe two or three on the other
side and we sort of tried to get them all lined
as we set it down. Then we started at that one
and got it real close and as best, you know,
in line and then worked our way around, drawed
the bin in, because part of it would be bulged
out a little bit because where you welded it
it would give a little.

Q. It was not a precise fit wpen you put it
back?
A.

No.

Q.

As you welded it it bulged around?

A. What I was talking about is when they put
the stub columns on the ground it might have
drawed in a little bit. That is the reason
we had to pull it on in to make it fit.

2578

*

*

*

*

Q.
When you say "draw i t in," can you
explain what you mean by draw it in.
A. We had had a ring, you know the ring,
part of it was sticking over just a little
bit so we had to make something to put on
it and then tack it and draw it in so it
would fit flush and worked our way around.
Q.
So the bin was too big, but not by much
or what? I am trying to understand what you
are trying to tell me and I am not quite
clear.
It wasn't a simple easy bead around.
You had to make it fit?
A.
Yes, had to sort of
in.

you had to draw it ·

Q. What kind of equipment did you use to
draw it in?
A. We had some big 12-inch C-clamps. You
know, you could draw the metal down. We cut part
of it off and made a foot and put it at the
bottom and we tied to the part that was like
this, out, and then drawed it, you know, just
kept screwing. We had like three or four drawing
it into a fit and then we would tack it, then
we would go back and weld.
Q. When you finished that process, how many of
the outside stub columns had been welded to the
other columns; do you know?
A.

I know one had for sure.

Q.

How many did you actually weld?

A.
I can't remember. Maybe two or three.
don't remember if I welded al~ of them.

I

Q.
Do you remember coming across a stub column
that was not lined up with the column above it?
A.
Yes, that was two or three days after we had
done put it up.
They was running refuse in the
bin.
Q.

Tell me what happened that day; what did you see?

A.
It wasn't directly over top of it. I
thought it was -- by looking, you know, I
thought it was like a couple inches off.

Q.

Did you talk to anybody about that?

A.

I didn't, no.

Q.

Who did?

A. Mostly I worked with Rufus. He usually
talked to Joe and then he would tell us
everything to do.
Q.

That was Joe Necessary and Rufus Young?

A.

Right.

Q. Mr. Necessary would tell you what to do -or he would tell -A. Mr. Young would tell us, you know, what we
would be doing, you know.
Q. Did you do the welding for the column that
you say did not line up?
A.

I don't remember.

I can't remember.

Q.

You do not remember putting a plate in and --

A. Yes, I remember we put plates in. We
put the plates in.
I am not for sure -- we was
in a basket when we was putting them back.

*

*

*

*

Q.
I have told you and you have heard in the
testimony today the investigation indicated with
respect to Drawing Number 3 that Columns Number
4 and 5 were offset 8-1/2 and ,8 inches, respectively,
and tho.t is a drawing to give a representation of
how the stqb column did not align directly with
the main column.
A. They didn't line up, but to the best of my
knowledge, I don't think it was off no eight
inches. Which when they came and talked to me
a year ago, the first time, they only said one

2580

column. Now you all say there was two.
I
told them then that I thought it was just
off like a couple inches.
I didn't think
this drawing was right.
Q. Well does that drawing look like the work
you did?
A.
Yes, we put plates in here.
plates.

We did put

Q. And you beaded those plates to the lower
column and you beaded them to the stub column
and you beaded them to the bin?
A. We welded all the way around this ring,
see. This is a separate one. There were two
going to the top of that. See, because when
I cut it loose, there was one coming up
that stopped here, and there was an old plate
in there to start with, then that stub column
set on it.
See, this ring, it wasn't one solid made ring.
It came on both sides of this main support beam.
Then there was a plate.
I know some of them
was over top of it.

Q.

The stub column was welded to the plate?

A. Welded to the plate and that is the way
we welded them back. The reason we had -- so.me
of them had like a thicker gap -- some of the
beams was more cut out when it was tooken down -Well, I cut most of them out and then some of
them I went back and cu~ again because like one
of them come loose. That is the reason why we
had a couple plates in some of them.

*

*

*

*

Q.
Is that diagram and the p~evious diagram,
which is Page 11, Drawing Number 3 that shows
the offset:and in Drawing Number 2 on Page 10
which shows how it should have been -- Do
you recall welding those two stub columns,
Column 4 and Column 5, at an offset without
having the beam directly centered on the stub
column?
A.
I can remember welding on them, yes. I
know of one being off, but I don't think it was
off no eight inches.

2581

Q..

You never measured it; did you?

No, I didn't measure but I could almost
tell by looking it wasn't no eight inches.
I would call it about two inches or two and
a half. Eight inches would be that (indicating).

A.

Q. Do you recall that that occurred on one
or two columns?
A.
I just recall it on just one, to the best
of my knowledge.

Q. You indicated that you and Mr. Young were
the people that did the welding on the outside
and you were hanging in a basket doing this
work; right?
A. Yes,-part of it you could get out and walk.
We had a scaffold built you know, on the outside.
Part of it we got on the platform and welded and
part of it we got in the basket and worked around.

Q. Mr. Stewart, are you aware of whether or not
Mr. Necessary saw that column that you maintain
was misaligned?
A. He came out while we was working on it, you
know, and was talking to us and telling us what
to do -- like I say, mostly he talked to Rufus,
like, you know, tell him what to do. But I
am almost sure that he saw it off.

Q. Did he get in the basket?
scaffold?

Was he on the

A. You could come up the bin, you could climb
down, you could go walk around it. You know,
you could go around it.
Q.

On the scaffold?

A.

Yes.

Q. You saw him in the presence of that one
column that you recall?
A.
I believe, I can't really swear to it, you
know, that positively that I know he saw it.

2582

Q. Did you receive any instructions from
Mr. Young or Mr. Necessary as to how to weld
the column that you recall was not aligned?
A. We were told, you know, to put our plates
in there to bridge that gap, which like I
told the guy when he came and talked to me that
you would have had to fill that gap and you
would have had to put a plate in there.
On cross-examination, Mr. Stewart stated that the reason
the new bin was "slightly off" when it was replaced was that the
entire bin and cone were not replaced. He indicated that the
cone was "eat up," and he believed it should have been replaced.
He described how the old bin top was cut off the structure,
and he indicated that the newly repaired portion of the bin
was welded to the cone on the inside. He also indicated
that the old bin cone ring had been "·riveted on" and "stiched
on," and that the rivets are similar-to bolts spaced a foot
apart. He also indicated that the ring was not a solid
weld where it fit to the cone, and that the rivets make holes
in the side of the bin (Tr. 145-150).
Mr. Stewart stated that he did not feel "rushed" during
the time he worked on the bin, and he confirmed that some
of the structure concrete footers were under water (~r. 155).
He also indicated that the structure had X-braces and lateral
supports, and he could not recall whether any of them were
missing (Tr. 156). He was not present when the structure
collapsed (Tr. 157).
In response to questions ;from the bench, Mr. Stewart
testified as follows (Tr. 158-165):

Q. When you welded the new bin onto the
pressure ring, the idea is to get the stub
column directly over the existing I-beam that
is under it; right, so that one will support
the other; is that right?
A.

Yes.
l

Q.
To the ~est of your knowledge, did you
achieve that objective, did you get all that
lined up to where you thought it should be
lined up?
A.

No, we didn't -- there was one like I --

Q.

The one that was two inches off?

A.

I think it was about two.

2583

*

*

*

*

Q. How many of the stub columns had you
welded? I understand you put the first one
in, but how many had you welded after you came
back after the Sunday and they were operating
and they were pouring material into that bin;
do you recall?
A. At least four. Well, ! know positively
we welded one on Sunday, the one we started from.
Q. Did you ever perform any welding work from
the scaffold while they were pouring material
into that bin?
A.

Yes.

Q.

Did

A.

It was no problem to me.

tb~t

concern you at all?

Q.
I see this scenerio, you and some o;t; your
fellow working welders up there on the scaffolding
and only one column is in place and you are in the
process of welding the rest of them and they are
pouring all this material in the bin; weren't you
concerned that the outside support columns, stub
columns, were not in place yet?
A. After we welded up on the inside, they
was pretty well in line then. They was over the
top of the other one and the bin was set in the
tank. Well, I say the tank, it was on the ring
real -- setting on it good and I didn't think
it was going to come off.
Q. Now, the theory of the Government's case
here is after you fellows completed your job,
there were two columns that were off eight inches
and within a week or two after you finished -MR.. ;FITCH:

Five weeks.

BY JUDGE KOUTRAS:
Q. -- five weeks after you finished something
happened to cause this thing to collapse. My
curiosity is aroused as to if it took five
weeks for it to collapse after all the stub

2584

columns were in place, why did it not
collapse when only one was in place and
you fellows were working on it and they
were pouring material into it? Do you
have any explanation for that or any opinion
or anything?
A. Well, that's what I thought, it looks
like -- with those columns we didn't even
have welded, it looks like it would give
then.
The way I feel about it, I think
they got it too full and all that weight
come down.
I believe that cone come loose from
the bottom it tore loose from that ring and
it shoved out.
I thought about it before, you
know, like if that cone give out because, see,
they didn't replace that cone.
It was eat up and
you had all that weight coming down in that
thing.
I either feel that one of them bottom
main support beams either gave down then it
peeled off, it would have to peel off, or either
that cone come out from under the bottom.

*

*

*

*

A.
I believe the bottom gave down and it turned
over.
I thought that they should have replaced
that bottom part. The coal company I thought
Island Creek should have replaced the whole thing.
Q. Aside from that, the Government's theory
here seems to be that the thing gave way because
two beams were misaligned. Be that as it may.
You were not concerned when you were up there
and they were dumping all that stuff.

A.
I didn't think it would -- what we would
have done would have give away, no. But I
thought about that bottom part coming out, which
I talked about, you know·, to Mr. Young.

Q.

Who is Mr. Young?

A.
Rufus Young, the one that was working with
me.
I told him that bottom -- I thought it might
shuck out if it got full.
Q. When was that?
about that?

A.

When did you talk to him

When he was working, doing the job.

2585

Q.

Did you mention that to anybody else?

A.

I mentioned it to -- not until after it fell.

Q.

Who did you mention it to after it fell?

A. The investigators when they came about a year
or so -- I didn't even know anybody had got killed.

*

*

*

*

Q. Had you ever done any of this kind of work
before?
A.

Yes, I have.

Q.

Cutting the top off of a bin like this?

A. Yes, I have welded up water tanks we have set
them up, I have welded lugs on, we have picked
them up with a crane and set them and welded all
kinds of belt structures, stock piled coal.

Q. So what you are saying, if you had to do this
all over again if you were the man that wrote
the work order, you would have taken the whole
contraption down and put a new one up there; is
that right, rather than cutting it off?
A. Yes, I would.
I would have replaced that cone
and all.
I asked the inspectors about that water
hole.
I was wondering if they might have put -there 1 s a settling pond there.
I was wondering
if it was put in after that bin.
I thought maybe
they might have put it in after it and undermined
one of those footers, too. That run in my mind,
if maybe one of them gave down and come over.
Dale R. Cavenaugh, Mechanical Engineer, MSHA Coal Mine
Safety Division, Arlington, Virginia, testified as to his
background and experience. He identified exhibit P-1, as
the report of investigation which he and others published
after the completion uf the accident investigation in question.
He stated that upon inspection of the storage bin parts which
had been inventoried and marked by the respondents personnel,
it was concluded that the bin columns had been misaligned,
and the conclusion reached by MSHA in this regard was the
result of the examination of these parts (Tr. 166-169). He

2586

confirmed that all of the bin stub columns were still attached
to the bin sides, and that the cone section was attached to
the insides on all locations that were used to determine
what caused the bin to collapse. He also confirmed that
measurements were made to support the conclusion that the
stub columns shown in photographic exhibits C-4 and C-5
were misaligned, and he described how this was done (Tr. 170).
Mr. Cavenaugh stated that there was no doubt that two
of the stub columns were misaligned by eight or eight and a
half inches, and he explained how he made this determination,
including a review of the blueprints of the structure supplied
by the company who originally designed, manufactured, and
installed the bin sometime in 1968, and interviews with
representatives of that company (Tr. 171-172). Mr. Cavenaugh
also explained how the misaligned columns affected the bin
load capacity and weight distribution (Tr. 173-174).
Mr. Cavenaugh stated that his investigation did consider
the possibility that the bin footings and the complete failure
of the cone may have contributed to the collapse of the bin,
but that these theories were discounted, and the cone was
still attached to the bin sides on most of the pieces which
were examined (Tr. 175-176). Be also indicated that his
engineering calculations, which were based on the misalighed
columns, indicated that the structure could not support a
fully loaded bin (Tr. 176). He believed that a reasonably
prudent person would have insured that the misaligned
columns were removed and reattached to the bottom columns
so as to transfer the weight load to the support column,
and that the failure to take this corrective action caused
the collapse of the structure (Tr. 1771.
Mr. Cavenaugh confirmed that MSHA's investigation
determined that the crane accident did not affect the stability
of the structure, and he concluded that anyone with knowledge
of the way the bin was supported, and the fact that the
columns were misaligned, should have known that "something was
wrong" (Tr. 179).
On cross-examination, Mr. cavenaugh confirmed that he is
a trained mechanical engineer rather than a. civil engineer.
He conceded that it was possible that the original installation
of the structure may not have been exactly how it is depicted
in the blueprints which he examined (Tr. 187). He confirmed
that his investigation did not disclose that any alterations
were made to the structure after it was constructed (Tr. 188).
He explained the function of the bin bolt holes as follows
(Tr. 188-191) :

2587

A.
There were bolts going through the column
through the bin side pieces that would align
those segments during construction so welding could
be done.
The bolts were through those holes
and through the column when it was built and the
way the one in VP-2 is built also, which there is
a picture of it.
Q. What did you take the purpose of those bolt
holes?

A.
I felt that they were to help support the
bin in place while the welding was to be done
and also to keep the column close to the side of
the bin to help facilitate welding.
Q.
Did you inspect for bolt holes or, I guess
they could be rivet holes as well, underneath
or in the area of the four stub columns other than
the two that you decided were misaligned?

A.

Yes, we did.

Q.

What did you find in regard to those holes?

A.
They were aligned.
They were aligned with
the stub column as in the top picture.
Q. Would bolting the bin to the main support
column be the only way of securing the bin to the
main support column?
A.

I am not sure what you mean.

Q.
Could the bin be welded to the main support
column as well as bolted?
MR. FITCH:
Point of clarification.
His testimony
was it was welded after the bolts were put in.
THE WITNESS:
The weld was ho:kding the bin, not
the bolts.
Of course, the bolts would help it.
They are not near strong enough to hold that bin
up.
BY MR. TALTY:

Q.

It was primarily the weld?

2588

A.

Right.

Q. Would it be possible that when the
structure was originally erected that there
was a slight misalignment at that time such
that the bolt holes in the bin did not line up
with the bolt holes in the main support column
so that they were not used, that they were
simply a weld put in but no bolt?

A.
I looked at the support column in all
six. Unless that column was cut where it had
originally been cut, in other words, the cut
was in an identical place, there was no other
cut welds on either piece, the stub column
or the main support column. So, if that had
happened, then they had cut the stub column
off in the exact place that it had been cut
before.

Q.
I am not sure I follow your answer.
It
may have been a good answer, but it was not
clear to me.
Is there any reason to think
that one or more of those pairs of bolt holes
were not used, that they were just simply holes
in the side of the bin?
·
A. No, we didn't find any evidence whatsoever
to support that.

Q.
I am not asking if you found evidence to
support that, I am asking you if it could have
been. Was it possible? Do you have evidence
that every bolt hole lined up with a main
support column, physical evidence?
A. The last time the bin was patnted there was
a support CQlumn lining up those holes because
right below those holes they needed paint.
Sir, that is about as much evidence as I have.
Mr. Cavenaugh al~o indicated that contrary to the blueprints, which indica~ed continuous support columns from the
bottom of the structure to the top, the investigation revealed
that the support columns were cut and that plates were inserted
to form the stub column (Tr. 192-197). He confirmed that
transit checks were made on the footings, and that there
was no way to determine how many cross braces may have been

2589

present prior to the accident. He conceded that to some
extent, the removal of lateral and cross supports would
affect the structural stability and strength of the bin
structure, and that it was possible that there could have
been a failure of a leg (Tr. 201).
In response to further questions, Mr. Cavenaugh stated
that the load capacity of the bin was 300 tons, and he estimated
that at the time of the collapse there was approximately 250
tons of material in the bin (Tr. 205). He confirmed that
his mathematical calculations took into account the two support
beams misaligned by inches, and a load by 300 tons. He
confirmed that while welds were made on the two support
columns in question, the top support columns were not directly
over the bottom ones (Tr. 206) • He concluded that the structure
did not collapse earlier then it did because it was strong
enough to support 250 tons, and the work which was done on
the welds was "good work." However, he believed that the
material breaking loose inside the cone initiated the collapse
(Tr. 207, 209).
In his opinion, the bin was close to collapse
when one of the victims began banging on the cone with a sledgehammer to free the clogged materials, and that the falling
material "probably" initiated the collapse (Tr. 210).
Mr. Cavenaugh stated that in his opinion, even if the
bin structure had not collapsed, it was still not maintained
in good repair in compliance with mandatory safety standard
section 77.200 (Tr. 216-217).
Respondent's Testimony and Evidence
Joseph B. Necessary, testified that he is 61 years of
age, and he confirmed that he has been in mine construction
work, including work as a welder, for approximately 45 years.
He testified as to his experience and background, including
the operation of his own mine construction business (Tr. 241245) .
Mr. Necessary stated that since August 1982, he has
been employed for approximately four weeks, and that since
that time he has done odd jobs such as "carpenter work,
pouring concrete" (Tr. 245). He descri~ed his present financial
condition as "Low. ;From one day to the next," and he indicated
that his financial ooiigations include mortgage and car payments,
and utility costs. He also indicated that he has had to rely
on his son for financial assistance CTr. 246).
Mr. Necessary confirmed that he was in charge of the
dismantling of the top of the bin in question, as well as

25BO

the repairs that were made to that structure. He described
how the work was performed and how the old bin was cut off
and removed, and how it was replaced after the welding work
was completed (Tr. 247-253). He also described the procedures
used to cut the old bin portion away from the structure,
including the cutting of the stub columns in question
(Tr . 2 5 4- 2 5 8 ) .
Mr. Necessary described that the loading of refuse into
the bin began after the interior welds were completed, but
before the outside work had been completed (Tr. 261). He
confirmed that Mr. Young and Mr. Stewart did the work
connected with the welding of the stub columns, and he confirmed
that he was called up to look at the work, and that he was
informed of the fact that one of the columns was "out of line"
for a distance of two inches, and that he confirmed this
by measuring it with a tape (Tr. 262-263).. He denied that
any of the stub columns were misaligned by eight inches or
more (Tr. 265).
Mr. Necessary testified that he observed water around
the bin structure footers at the No. 5 and 6 columns
next to the catwalk (Tr. 269). He conceded that the. newly
repaired bin may have been "out of round" when it was reinstalled,
and that it was "drawn in" to correct this problem, and he
indicated that the new bin was of the correct size (Tr. 271).
Mr. Necessary expressed an opinion that the collapse
of the structure in question was caused by the "bridging
of material," which entailed the filling of the bottom of
the bin cone with "filter cake" material, and he explained
his theory as to what may have caused the collapse of the structure
(Tr. 2 71-2 7 5) .
On cross-examination, Mr. Necessary confirmed that upon
examination of the ;repair work, he observed only one column
which had been welded on two inches off center (Tr. 278).
When asked about the bolt holes which are present under the
columns depicted in MSH~'s report at location C-4, Mr. Necessary
stated that he could not recall observing any bolt holes
at the time the work was performed (Tr. 282). He confirmed
that at no time did he ever view the bin after it collapsed,
and that he has never spoken with anyone who worked around
the bin when it collapsed (Tr. 284).
Mr._ Necessary stated that at the time the repair work
was performed, he looked at the bin and found that five of
the stub columns were aligned properly, but that one was
misaligned by two inches (Tr. 288-289).
He could not recall

2591

discussing the matter with Mr. Young or Mr. Stewart, and he
indicated that he did not consider it "that much of a hazard"
(Tr. 293). He also did not dispute Mr. Cavenaugh's testimony
that the holes in the columns were used to align them,
but he indicated that he had no knowledge of any such holes
and has never heard of them being used for that purpose
(Tr. 295-296).
Inspector Cavenaugh was recalled for additional testimony,
and he indicated that "impact loads" caused by a "pyramiding"
and sudden falling of filter cake materials in a bin cone
are common occurrences. He pointed out that the bins are
specifically designed to withstand such loads, and he concluded
that there has to be something wrong with a structure of this
kind to allow it to collapse (Tr. 315). He reiterated that
it was his opinion that the collapse of the bin in question
was caused by the misaligned stub columns, and that his
opinion that the columns were misaligned by as much as eight
inches was based on his examination of the physical evidence
which remained after the collapse, and the fact that two
placement holes were off center (Tr. 315-316).
Procedural Motion
At the conclusion of the petitioner's case, respondent's
counsel made a motion to dismiss the proposal for assessment
of civil penalty filed against Mr. Necessary on the ground
that petitioner presented no evidence to support its assertion
that he had any knowledge that two bin columns were misaligned
by eight inches. Conceding that the evidence presented by
petitioner may establish that Mr. Necessary was aware of
the fact that one column was misaligned by two inches, and
conceding further that petitioner's evidence and testimony
may support a conclusion that the bin was not in good repair,
and therefore in violation of section 77.200, respondent's
counsel asserted that there is no evidence to support a
"knowing" violation against Mr. Necessary (Tr. 227-228).
Petitioner's counsel argued in opposition to the motion
to dismiss, and in support of his case asserted that the
evidence presented by the testimony of the two welders and
Mr. Cavenaugh show without a doubt that two of the columns
were misaligned, that this caused the structure to collapse,
and that as the on-site foreman, Mr. Necessary should have
known that the structure was unsound (Tr. 227-239).
After further consideration of the oral arguments in
support of and in opposition to the motion to dismiss, it was
denied (Tr. 240).

2592

Findings and Conclusions
The interpretation and application of the term "knowingly"
as used in the Act has been the subject of litigation before
this Commission. MSHA v. Everett Propst and Robert Stemple,
3 FMSHRC 304 (1981-)-.-In MSHA v. Kenny Richardson, 1 FMSHRC
87 4 (July 197 9; ALJ M±chels) , 3 FMSHRC 8 (_January 1981) ,
the Commission held that the term "knowingly" means "knowing
or having reason to know·," and it rejected the assertion
that the term requires a show±ng of actual knowledge and willfullness to violate a mandatory standard.
In this regard, the
Commission adopted the following test as set forth ±n U.S. v.
Sweet Briar, Inc., 92 F. Supp. 777 (p.s.c. 1950):
'[K]nowingly,' as used in the Act, does
not have any meaning of bad faith or evil
purpose or criminal intent.
Its meaning
is rather that used in contract law,
where it means knowing or having reason
to know. A person has reason to know when
he has such information as would lead a
person exercising reasonable care to acquire
knowledge of the fact in question or to inf er
its existence.
In Richardson, the Commission held that its interpretation
of the term "knowingly" was consistent with both the statutOry
language and the remedial intent of the Act, and it expressly
stated that "if a person in a position to protect employee
safety and health fails to act on the basis of information
that gives him knowledge or reason to know of the existence
of a violative cond±tion, he has acted knowingly and in a manner
contrary to the remedial nature of the statute." On appeal
to the Sixth Circuit, the Court affirmed the Commission's
decision, Richardson v. Secretary of Labor, FMSHRC, 689 F.2d
623 (6th Cir. 1982), cert denied, 77 L. Ed. 2d (_1983).
In MSHA v. Roy Glenn, 6 FMSHRC 1583 (July 1984), the
Commission applied its holding in the Richardson case to a
factual situation where the violation of a mandatory standard
did not exist at the time of the alleged failure of the
corporate agent to act. The Commission stated as follows
at 6 FMSHRC 1586:

* * * we hold that a corporate agent in a
position to protect employee safety and health
has acted "knowingly" in violation of section
llO(c) when, based upon facts available to
him, he either knew or had reason to know that

2593

a violative condition or conduct would occur,
but he failed to take appropriate preventive
steps. To knowingly ignore that work will be
performed in violation of an applicable standard
would be to reward a see-no-evil approach to
mine safety, contrary to the structures of
the Mine Act.
Given the parameters of the Commission's application of
the term "knowingly" in the Richardson case, and the refinement
of that term in the Glenn case, the question presented is
whether, given the facts presented in this case, Mr. Necessary
"knew or had reason to know" of the violative conditions,
but failed to act.
In this regard, the commission observed
as follows in its Glenn decision, at 6 FMSHRC 1587:

* * * the Commission held in Kenny Richardson
that a supervisor's blind acquiescence in
unsafe working conditions would not be tolerated.
Onsite supervisors were put on notice by our
decision that they could not close their eyes
to violations, and then assert lack of responsibility
for those violations because of self-induced
ignorance. Our decision here today is buttressed
by the same concerns and principles.
Although the respondent in this case conceded that MSHA's
evidence establishes that the existence of one or more misaligned
support columns may support a conclusion that the bin structure
was not in good repair as required by the cited mandatory
section 77.200, it nonetheless attempted to establish that
other circumstances may have caused the collapse o;f the structure.
Respondent's testimony is that the existence of standing
water at the base of the structure at the ;footings, and the
possible lack of enough cross-braces at the base of the
structure may have precipitated the collapse. However, upon
review of the testimony, I conclude that respondent's assertions
in this regard fail to rise above unsupported opinions and
speculations. On the other band, Mr. Cavenaugh testified
that he considered these factors in his analysis and determination
of what caused the collapse, and discounted them.
I accept
Mr. Cavenaugh's explanations as credible, and I conclude and
find that respondent has not established that the standing
water or any missing braces caused the structure to collapse,
or otherwise contributed tQ that incident.
During the hearing, the respondent raised the inference
that the structure may have been damaged when it was struck
by a crane while lifting the bin from the top of the structure.
However, the testimony establishes that it was the respondent's
crane, and that examination of the bin structure at the time
of that event did not detect any damage. Accordingly, respondent's
assertion is totally unsupported, and it is rejected.

2594

Although Mr. Necessary was of the opinion that the collapse
of the structure was caused by material "bridging" in the cone
portion of the bin, and then suddenly being loosened, ·
Mr. Cavenaugh discounted this theory and testified that such
"bridging" is not an unusual occurrence and that a properly
constructed bin should withstand such sudden releases of
materials.
Finally, the respondent argued that because of the complete
collapse and massive accumulation of bits and pieces of the
structure after it collapsed, it is impossible to reconstruct
the incident with any degree of certainty.
In this regard,
I take note of the fact that the respondent failed to call
any engineering or construction experts to support its
conclusions in this regard.
On the other hand, MSHA presented
the testimony of Mr. Cavenaugh, a mechanical engineer who
participated in the post-accident investigation, and who was
in large measure responsible for authoring the August 24,
1982, report which is part of the record in this case (exhibit
P-1). Further, the record establishes that after the collapse
of the structure, all of the remaining parts were secured,
inventoried, and lableed by the mine operator, and MSHA's
reconstruction of the event, including its conclusions as
to what caused the collapse of the structure, was made
after careful anaylsis a.nd evaluation of all of this material.
Accordingly, after careful review of Mr. Cavenaugh's testimony,
I conclude and find that the petitioner has established by a
preponderance of all of the credible evidence adduced in
this case that the proximate cause of the collapse of the
structure was the fact that two of the stub support columns
were not aligned with the main support columns, and that this
misalighment affected the structural integrity of the bin
structure in that it reduced its load supporting capability.
The thrust of petitioner's case is that MSHA's investigation
of the accident established that two of the bin support stub
columns which were replaced after the welding work completed
by the welders under Mr. Necessary's direct supervision were
misaligned and were not welded in place directly over the
structure's main support columns. ·Petitioner asserts that
MSHA's ~Ost-accident investigation established that the two
stub columns in question were out of litie by as much as eight
inches, and because of this, the bin structure was structurally
unsound, and the misffiignment ultimately caused the
structure to collapse.
During the hearing, petitioner's counsel pointed out
that Mr. Necessary was in a position where he should have
known that at least two of the stub columns were misaligned,

2595

that one of the welders gave him an opportunity to observe
it closely, and that Mr. Necessary clearly remembered that
at least one of the support columns was misaligned by at
least two inches, and that he personally made the measurement
that confirmed this fact (Tr. 322).
Mr. Necessary admitted that after the construction work
was completed on the bin, it may have been "out of round"
when it was rewelded to the bin structure, and that this
necessitated that it be "drawn in" by the welders.
It seems
obvious to me that at this point in time, Mr. Necessary
should have been aware o;f; the fact that the newly constructed
and installed bin did not exactly fit in place when the welders
ccmnenced their work of reattaching it. Further, Mr. Necessary
admitted that when he examined the work done by the welders,
he recognized the fact that at least one of the stub columns
had been welded in place two inches off center, and he conceded
that the stub support column which he observed was misaligned
by at least two inches. A,lthough he testified that he did
not consider this misalignment to pose "that much of a hazard,"
this candid admission on his part supports a conclusion that
he at least recognized that the misalignment did in fact pose
a hazard.
While there is a dispute in the testimony on the question
of whether or not two stub columns were misaligned by as
much as eight inches, I cannot conclude that this detracts
from the fact that the testimony of at least four witnesses
who were either directly involved in the construction of the
bin, or participated in the post accident investigation,
establishes that one or more support stub columns were
misaligned.
I conclude and ;f;ind that the petitioner has established
through the credible testimony of Mr. Cavenaugh, that any
misalignment in the support columns affected the structural
integrity of the bin structure, thereby causing, or significantly
contributing to, its collapse. Under the circumstances, I
conclude and find that the petitioner has established by a
preponderance of the evidence adduced in this case, that the
bin structure in question was not maint~ined in good repair
to prevent accidents and injuries, and that this constitutes
a violation of section 77.200.
With regard to the evidence establishing Mr. Necessary's
accountability for the violation, Mr. Young, one of the welders
who helped do the work, admitted that while he was welding the
outside of the bin at a time when material was being dumped
into it, he observed one column which was misaligned by at

2596

least two inches, and that it was not lined up with the
support column. Mr. Young confirmed the accuracy of a prior
statement he made to an MSHA investigator where he confirmed
that the misaligned stub column was discussed with Mr. Necessary,
and that Mr. Necessary inspected the work.
Mr. Stewart, the second welder who was working with
Mr. Young, also confirmed that two or three days after the bin
was in place on the structure, and while material was "being
run" into the bin, he observed one stub column misaligned by
two inches, and he indicated that it was not directly over
the companion support column. Further, when asked about the
number four and five columns which petitioner claims were
misaligned by 8 inches, Mr. Stewart responded that while
"they didn't line up," he disputed the fact that they were
misaligned by 8 inches, and his recollection was that only
one column was misaligned. He also stated that he was sure
that Mr. Necessary saw the one misaligned column while
he was on an outside scaffold instructing him and Mr. Young
as to how to weld some plates to fill gaps under the column.
The evidence adduced in this case establishes that
Mr. Necessary was an experienced welder and construction man.
He alluded to 45 years of experience in the business, including
the operation of his own construction company. Given this
background, I believe one can reasonably conclude that he
knew or should have known that the misaligned stub support
column in question posed a serious potential safety problem
which he should have addressed immediately by ordering his
welding crew to make the necessary corrections.
I conclude that the facts presented ~n this case
establish that Mr. Necessary was aware of the fact that one,
and possibly two, support stub columns had been welded in place
in a misaligned position, and not directly above the remaining
support column or columns. Further, in view of the fact
that Mr. Necessary was supervising the work, the fact that
the condition was called to his attention by at least one
of the welders, and the fact that he readily admitted he
knew that at least one of the columns was misaligned, I conclude
that he knew, or with the exercise of reasonable diligence,
should have known of the hazardous condttion presented by
the misalignment of the stub columns in question. Given these
facts, I further conclude and find that Mr. Necessary should
have taken the necessary corrective action to insure that the
stub coiumns were properly aligned, and that his failure to
do so constituted a_ knowing violation of the cited mandatory
safety standard in issue in this case.

2597

Civil Penalty Assessment
Although given ample time to file post-hearing briefs,
or proposed findings and conclusions, the parties declined
to do so. However, I have considered the oral arguments made
by counsel during the course of the hearing in this matter.
With regard to the six statutory civil penalty criteria found
in section llO(i) of the Act, petitioner's counsel agreed
that the factors of gravity, negligence, and the respondent's
financial ability to pay a civil penalty for the violation
in question are relevant, but that the factors concerning
any history of prior violations, size of operation, and good
faith abatement do not lend themselves for application in this
case (Tr. 320-321).
Negligence
I find no circumstances presented in this case which
may mitigate Mr. Necessary's riegligence with respect to the
violation.
The evidence establishes that he knew or should
have known of the conditions constituting a violation of
section 77.200, and that this constitutes a high degree of
negligence on his part.
Gravity
The collapse of the bin structure resulted in the death
of three miners, and I conclude that the violation was extremely
serious.
Respondent's Ability to Pay a Civil Penalty
As previously noted, respondent's employer paid a civil
penalty in the amount of $9,000, for a violation of section
77.200, and the mine operator paid a civil penalty assessment
in the amount of $240.
Mr. Necessary's unrebutted testimony is that since
August 1982, he has been employed for about four weeks, and
he alluded to certain financial obligations which he has,
including mortgage and utility payments, He also indicated
that he has had to rely on his son for financial assistance.
Petitioner has asked for a civil penalty assessment in
the amount of $1,000, and its counsel suggested that if this
amount were assessed by me for the violation, the respondent
could possibly work out a payment schedule with MSHA for the
payment of the penalty (_Tr. 321).

2598

Although on the facts of this case, a substantial civil
penalty assessment would otherwise be in order, I take note
of the fact that Mr. Necessary is 61 years of age, has no
steady employment, and has financial obligations which
he must meet. Further, given the passage of time since the
violation occurred, the fact that Mr. Necessary and others
may have been the subject of possible criminal proceedings,
and the fact that he has obviously incurred legal expenses
in connection with these matters, I am not convinced that
a substantial civil penalty is warranted. Accordingly, I
conclude that a civil penalty in the amount of $500 is appropriate
in this case.
ORDER
Respondent Joseph B. Necessary IS ORDERED to pay a civil
penalty in the amount of $500, for the violation which has
been affirmed in this case, and payment is to be made to
the petitioner within thirty (30) days of the date of this
decision and order.

~~.4l!f::~
Administrative Law Judge

Distribution:
Edward H. Fitch, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
William B. Talty, Esq., 106 East Main St., P.O. Box 581,
Tazwell, VA 24651 (Certified Mail)

/slk

2599

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
CHESTER JENKINS,
Complainant

NOV 14 1984

DISCRIMINATION PROCEEDING
Docket No. WEST 81-323-DM

.

Republic Unit

v.
HECLA-DAY MINES CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
AFTER REMAND
Before:

Judge Morris

This case involves a complaint of discrimination filed by
the Secretary of Labor pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. The complaint
alleged that the operator violated section 105(c)(l) of the Mine
Act, 30 U.S.C. § 815(c)(l), in connection with three incidents
involving complainant.
The case was heard by Virgil E. Vail, an administrative law
judge of the Commission. The decisi.on of the judge was
thereafter reversed, in part, by the Commission because of its
finding that complainant had been suspended without pay in
violation of the Mine Act.
Inasmuch as Judge Vail had left the Commission, the case was
reassigned to the undersigned judge for an appropriate and expeditious back pay award.
Subsequently, the judge set the case for a hearing in
Spokane, Washington. Prior to hearing the parties advised the
judge that the case had been settled. They filed a stipulation
and agreed that pursuant to the Commission decision there is due
and owing to Chester (Sam) Jenkins the sum of four hundred
fifty-two dollars and six cents ($452.06) to be paid by Hecla-Day
Mines Corporation.

2600

,Based on the stipulation of the parties, I enter the
following:
ORDER
1. Respondent is ordered to pay to the complainant the sum
of four hundred fifty-two dollars and six cents ($452.06).
2. Respondent is further ordered to pay said amount within
ten days of the date of the decision.

'o~hn
*-~
Admini~~~~e
J-

Law Judge

Distribution:
Rochelle Kleinberg, Esq., Office of the Solicitor, U.S.
Department of Labor, 8003 Federal Building, Seattle, Washington
98174 (Certified Mail)
Michael B. White, Esq., Hecla-Day Mine Inc., P.O. Box 320,
Wallace, Idaho 83873 (Certified Mail)
/blc

2601

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

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

NOV 14 1984

CIVIL PENALTY PROCEEDING
Docket No. YORK 82-18-M
A.C. No. 30-01185-05024

v.

Balmat Mine No. 4 and Mill

ST. JOE RESOURCES COMPANY,
Respondent
DECISION
Appearances:

William M. Gonzalez, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York,
for Petitioner;
Sanders D. Heller, Esq., Gouverneur, New York,
for Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding 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
a civil penalty assessment in the amount of $160 for an alleged
violation of mandatory safety standard 30 C.F.R. § 57.18-25,
as noted in a section 104(a) Citation No. 201695, served on
the respondent by an MSHA inspector on April 29, 1981. The
respondent contested the proposed assessment and the case
was heard in Watertown, New York. The parties were afforded
an opportunity to file post-hearing proposed findings and
conclusions, and the arguments presented therein have been
considered by me in the course of this decision.
Issues
The principal issue presented in this proceeding is (1)
whether the respondent has violated the provisions of the
Act and implementing regulations as alleged in the proposal
for assessment of civil penalty filed, and, if so, (2) the
appropriate civil penalty that should be assessed against
the respondent for the alleged violation based upon the criteria
set forth in section llO(i) of the Act. Additional issues raised
are identified and disposed of where appropriate in the course
of this decision.

2S02

In determining the amount of a civil penalty assessment,
section llO(i) of the Act requires consideration of the
following criteria:
(1) the operator's history of previous
violations, (2) the appropriateness of such penalty to the
size of the business of the operator, (3) whether the operator
was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation, and
(6) the demonstrated good faith of the operator in attempting
to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2.

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

3.

Commission Rules, 29 C.F.R. § 2700.l et seq.

4.

Mandatory safety standard 30 C.F.R.

§

820(i).

§

57.18-25.

Discussion
The condition or practice cited as a violation in this
case is as follows:
The Stope miner in the 2100 F-16 stope was
allowed to perform work alone in an area on 4-27-81
where his cries for help could not be heard and
he could not be seen by the employee assigned
to check on him when a chunk of loose material
fell from the back while scaling causing injury
to employee at 8:30 a.m.
The cited mandatory safety standard, 30 C.F.R.
states as follows:

§

57.18-25

No employee shall be assigned, or allowed, or
be required to perform work alone in any area
where hazardous conditions exist that would
endanger his safety unless his cries for help
can be heard or he can be seen.
Stipulations
The parties stipulated that the respondent is in the
business of mining zinc, and that at the time the citation
issued its annual production was 454,080 tons, and its annual
manhour production was 2,649,998. The parties also stipulated

2603

that for the period August 18, 1971 to approximately
August 17, 1981, respondent was assessed for 50 citations
which it paid. They also agreed that the proposed civil
penalty of $160 will not adversely affect the respondent's
ability to continue in business, that the violation in question
was rapidly abated by the respondent, and that the presiding
Judge has jurisdiction to hear and decide the case (Tr. 5-6).
Petitioner's Testimony and Evidence
Earl S. Swem testified that he is employed by the respondent
as a production miner, and he testified as to his experience
and training.
He confirmed that he worked at the mine in
question on April 27, 1981, and he described the stope where
he worked as 25 feet wide, 100 feet long, and that the roof
height ranged from 40 to 60 feet (Tr. 16). He stated that
on Friday, April 24, 1981, he had fired one shot consisting of
six to nine holes, and that he did so to remove some hanging
material. He next returned to work on Monday, April 27, 1981,
and began scaling in the stope area so that he could determine
where it was safe to begin work. He began scaling from the
left side because "the hanging looked pretty good" (Tr. 19).
He then proceeded scaling to the right side, and while moving
back across the area he was struck on the head and his hard
hat by a piece of rock. He continued scaling, but then
"felt kind of wheezy," and he decided to go to an adjacent
stope where two other miners were working to tell them what
had happened. His neck began to bother him, and he was pale,
and it was decided that he should leave the area. He was
taken to the mine surf ace and subsequently went to a chiropractor
who sent him to the hospital to have his neck x-rayed. The
x-rays proved negative, and after some treatment by the doctor,
he went home and returned to work the next day on April 28, 1981
(Tr. 2 0) •
Mr. Swem stated that he was standing on the muck pile
scaling when the rock struck him, and that he was approximately
a foot to three feet from the roof. He did not see what
struck him because he was struck from the rear, and he did
not examine the area to determine what struck him because
he was dizzy and didn't want to take the chance of something
else hitting him. He confirmed that
examined the area
before beginning th~.scaling work, and he described what
the area looked like (Tr. 25). He also confirmed that prior
to the incident, he had asked many times that a second person
work wi-th him in the area (Tr. 25). He stated that he has
asked his boss or the checker for different helpers because
"the hanging was in there, it wasn't the best to stay around
by yourself, a lot of times" (Tr. 25).

he

2604

Mr. Swem explained that there are usually four or five
miners working in the stope areas, and an additional miner
works as a "roving checker" to look in on the miners who
are working.
If a miner asks for additional help, the checker
will assist him if he is in the area.
If not, the miner
must work alone or wait for additional help (Tr. 26-27).
Mr. Swem stated that he has worked alone in areas performing
scaling work, and that he considered some areas safe and
others not. He explained that if he has to spend one or two
days scaling an area "that ain't a good place to be all by
yourself" (Tr. 27).
Mr. Swem stated that when he returned to work the day
after the incident, scaling began in the area where he was
and the hanging material was scaled down and was on the floor.
Later that day Federal inspectors came to the area to inquire
as to what was going on, and the next day they came back
with company and union representatives to check the area out,
and tests were conducted by placing someone in another stope
area to determine "if they can holler and scream and if they
can hear anybody" (Tr. 29).
Mr. Swem described some of the roof area the day after
the incident as "drummy," and he stated that he and another
miner spent most of the first day and the second day scaling,
and that the area was then pinned and screened. He estimated
that six to eight tons of material was scaled down, but he
was not sure (Tr. 30-31). He confirmed that on the day he
was struck he had scaled for about an hour before the rock
hit him (Tr. 34).
On cross-examination, Mr. Swem confirmed that sometime
in January 1981, he left the stope area in question and went
home because of the presence of hanging material. He informed
several mine officials that he was leaving because some of
the hanging material fell and that he was scared, and he lost
pay for that part of the day (Tr. 35). He stated that he
did not know that he could leave any work area which he
believed was not safe, but that the company allowed him to
leave and he was not criticized, suspended, or otherwise
disciplined for doing so (Tr. 36)
Mr. Swem described the work he performed on the Monday
after he had fired the shot, and he confirmed that the area
was screened and pinned and that he had worked the stope for
two months after the pinning and screening had taken place.
He also confirmed that pinning and screening is a constant
procedure, and he explained how this is done (Tr. 38-40).
He also indicated that he used the muck pile to stand on so

2605

that he could reach the hanging material, and without the
muck pile he could not reach the material.
Once pinned, the
muck is removed from the area.
He confirmed that prior to
being struck he was scaling from the muck pile and was also
checking the roof to make sure it was safe.
He tested the
hanging roof area behind him and to his left, and was in the
process of checking the area in front of him and to his right,
and was testing it as he went in (Tr. 46).
He stated that
he was "comfortable" when he first went into the area to
begin work, and he confirmed that what he was doing was the
normal procedure for testing and making the area safe (Tr. 47).
He believed that the rock which struck him had to have fallen
from directly over his head and that his head was a foot to
three feet from the hanging material when he was struck,
and that he had tested the area (Tr. 48). He confirmed
that during the drilling and scaling process, the hanging
material will "work" and care must be taken to check all work
areas (Tr. 49-50).
Mr. Swem stated that on the day he was struc~ Mr. Cortland
Bridge was serving as the "circulating miner," or "babysitter,"
and that he is supposed to periodically check on all miners
working in the stopes and to help them scale as needed.
He identified Mr. Bridge as the person who brought him out
of the mine after he was struck. Mr. Swem stated that the next
stope from where he was working was some 200 to 300 feet
away.
He described his own stope, and explained the work
he had performed on the previous Friday (Tr. 52-55). When
he returned to the area on Monday, he performed his usually
routine safety checks, and since he was struck early in the
shift, he stated that "I didn't get much time to really do a
lot of checking and scaling" (Tr. 55). He confirmed that he
had no pinning to do that morning, but that the men on
stope did.
He also described the hard hat he was wearing
and stated that it was not damaged by the rock, but that it
was scratched (Tr. 57).
Mr. Swem described the general condition of the stope
roof areas before and after the rock struck him, and he also
detailed how he goes about his pinning and safety checks,
and how he scales the area to make it safe (Tr. 60-71).
David LaPlatney, testified that he was been employed
by the respondent fa~ 19 years.
He was employed at the mine
in question on April 28, 1981, and also served as president
of the miner's union and chairman of the safety committee.
He confirmed that when he learned of the accident concerning
Mr. Swem, he requested that the company and the union go to
the stope area in question to inspect it in order to determine
what had happened, and they did so on the morning of April 28
(Tr. 79).

2606

Mr. LaPlatney testified as to his observations of the
stope area on April 29, and he believed that it would have been
difficult for anyone to safely scale down the materials which
he observed. He testified as follows (Tr. 81-84):
JUDGE KOUTRAS:
Yes, but the point is: did
he scale down some hanging material that was
loose?
THE WITNESS:
I'm saying for anybody to get in
a position, is what I felt, to get in a position
to do any kind of decent scaling, he was on the
verge of being in an area that he shouldn't be
in.
It was a narrow-type area and it appeared to be
so much loose stuff
JUDGE. KOUTRAS: Are you suggesting that he
shouldn't have been where he was at when he was
scaling the roof, to make it safe?
THE WITNESS: I'm saying it was very difficult,
even to be close to being safe.
Okay. When you first started into the area,
beyond from where he fired, or before you get to
where he fired, yes, it was pinned right there,
but you start stepping out into the area where
he had fired and he had apparently taken some
out of the hanging.
I don't know, three or four
holes in the hanging, whatever it was.
JUDGE KOUTRAS: Are you suggesting that he put himself in a precarious position to do the scaling?
THE WITNESS:

I'm saying anybody trying to.

JUDGE KOUTRAS:
I'm talking about the gentleman
who just testified, what he did to make the area
safe for himself. Are you suggesting to me now
that when you saw it on a Tu~sday that he probably
shouldn't have been where he was at when he was
scaling. ;
THE WITNESS: Well, apparently he got it so he
shouldn't have been there, but -JUDGE KOUTRAS: No, wait a minute. Are you
suggesting that he was in an area where he shouldn't
have been, when he was scaling, because it was
unsafe?

2607

THE WITNESS: No.
I'm saying I felt, when I
see it, what chunks I seen down and still on the
sidewalls, and it's drummy, just a few feet beyond
where he said he got hurt it was still drummy -in other words, you sounded it out and it was
still a little bit drummy, where you had to pin or
whatever.
JUDGE KOUTRAS: Could one conclude that, had the
rock not fallen and struck him, that he would have
gotten to that area and scaled it down and that's
what was left when he was interrupted by the striking?
THE WITNESS: It's hard to determine because it was
in such a way, the way the roof was arched -- okay?
and then up near the top, the center of the arch,
you had these slips that were going up out of it.
Okay. You scale a chunk off the left side, say.
That could very well and probably was what was
holding this drummy area; see what I'm saying?
So it would be very difficult for anyone -- in other
words I'm saying it was an exceptional area, really,
to try to scale it.
JUDGE KOUTRAS: What would be your suggestion, then?
As to how to scale it and bring that unusual,
exceptional roof area down?
THE WITNESS: I don't know.
I figured that was
probably up to management to
JUDGE KOUTRAS: Well, no, you're the chairman of
the safety committee. You go in there with a couple
of safety people and I assume some people that were
concerned; how would you -THE WITNESS: Quite possibly -- they had their
scraper bucket there. Nobody has mentioned that.
What they were doing is, at times after he had
fired they would have to scrape the top of the muck
pile out, ~n order to get it down low enough so
that they'could rock bolt.
Okay. So you had that problem, too, in that one
section, one side. You know, the muck was too close
to the hanging for them ever to put a rock bolt in.
They had to strip it down a little bit to get the
right distance.

2608

So you had -- well, you just had what I
considered a dangerous area to try and do anything
in, really.
In my experiences.
Mr. LaPlatney also described the condition of the room area
away from the stope area where Mr. Swem had been working,
and he stated that he observed some roof cracks and some
hanging material (Tr. 102-106). Mr. LaPlatney stated that
he was disturbed over the fact that the shift boss was making
determinations as to whether or not a particular miner needed
the helper without first examining or viewing the stope areas
where they were working. He also alluded to the fact that
the shift boss stated that the helper was not there to do
the work of the miners, and that the helper was expected to
make his rounds every hour (Tr. 107). Mr. LaPlatney was
of the opinion that the area was unsafe because Mr. Swem
was not within hearing distance of anyone, and that this was
a hazardous situation (Tr. 107). Based on his observations,
even if the rock had not struck Mr. Swem, Mr. LaPlatney would
still be of the view that he probably should have had a
second person present with him when he was working in the
stope area in question (Tr. 127).
On cross-examination, Mr. LaPlatney asserted that his
reasons for requesting an MSHA inspection was based on his
opinion that the company should have provided a second helper
to Mr. Swem, and had this been done there would have been
no need for an MSHA inspection (Tr. 129). Mr. LaPlatney
confirmed that under a provision in the union/management
agreement, when an employ~e observes an unsafe condition he
should immediately notify his foreman, and that the foreman
will take corrective action, which may include assigning the
employee to other work (Tr. 129). Mr. LaPlatney confirmed
that no citations for loose, hazardous materials were issued
by MSHA with regard to the stope in question (Tr. 145}.
Raymond F. Drake, stated that he is an MSHA metal and
nonmettalic mine safety inspector, and that he has been so
employed for six years. He testified as to his mining background and experience, and he confirmed that he participated
in the investigation of the incident concerning Mr. Swem
on April 28, 1981 (Tr. 158). He confir~ed that former Inspector Paro
issued the citation in question in this case along with him,
and he confirmed tha~ Mr. Paro is no longer employed by MSHA
(Tr. 160) .
Mr~ Drake confirmed that he and Mr. Paro were assigned
the task of conducting an investigation into the incident
concerning the rock striking Mr. Swem, and he confirmed that
the investigation was prompted by Mr. LaPlatney's telephone
call to MSHA (Tr. 162). Mr. Drake confirmed that he arrived
at the mine on Tuesday, April 28, and went underground that
afternoon with company and union representatives. He and

2609

the group stopped by the stope area adjacent to the area
where Mr. Swem was working, and they then proceeded to
the stope area where Mr. Swem had been working on the previous
day, which he believed to be approximately 300 feet away. When
he arrived at the stope, Mr. Swem was present, and Mr. Swem
confirmed to Mr. Drake that the area was safe (Tr. 165).
After speaking with Mr. Swem about the incident on the prior
day, Mr. Drake stated that he observed the area, and he
stated that "there was definitely questionable ground in
the area" (Tr. 167).
Mr. Drake stated that when he observed the stope area
where the rock struck Mr. Swem, he stood on the muck pile
back away from the immediate location, but that he did
observe "several cracks, slips, in the immediate area, you
know, in front of us, where Mr. Swem had been roofing" (Tr. 169).
Mr. Drake was not sure as to whether anyone else physically
examined the area, and he confirmed that he simply "eyeballed it"
(Tr. 171). He did confirm that when he arrived on the scene
Mr. Swem and another miner had been scaling the accident area
down for at least three to four hours (Tr. 173-174). Mr. Swem
pointed out the material which had been mucked down (Tr. 185).
Mr. Drake confirmed that the inspection party conducted
a "holler test" and took measurements, and he indicated that
this was done by someone going to the adjacent stope and
yelling as loud as they could to see whether they could be
heard from the stope area where Mr. Swem was working at the
time of the accident (Tr. 187). The shouts could not be heard
(Tr. 18 7) .
Mr. Drake confirmed that when he and the inspection party
viewed the accident scene, scaling was taking place by two
men and since the conditions were being taken care of, no
citations could have been issued because of the presence
of any hazardous materials (Tr. 197). Mr. Drake stated that
he could not recall speaking to any mine management personnel
to determine whether the stope where Mr. Swem was working
at the time of the accident had been previously inspected.
He also confirmed that he did not review any mine inspection
records, but he did recall asking Mr. Swem, and that Mr. Swem
informed him that no one had inspected the area (Tr. 209) ..
Mr. Drake confirmed that during the close out conference
held after the inspection party left the stope area, he and
Inspect:or Paro determined that the violation should be issued,
and that he (Drake) believed that Mr. Swem had worked in a
hazardous area, that his cries could not be heard, and that
he could not be seen. Since these facts fit all of the criteria,

2610

he decided that a citation should issue (Tr. 213-214). His
determination that the area where Mr. Swem had worked was
hazardous, was based on the considerable scaling which had
been done before he was struck, and the fact that "there was
other loose in the immediate area" (Tr. 214-216). He also
considered the fact that the area had been extensively
pinned and scaled, and that led him to believe that "there's
a problem there to begin with" (Tr. 216-220).
On cross-examination, Mr. Drake testified as to his
MSHA and mining training (Tr. 253-257). He confirmed that
his determination as to whether any mine area is "hazardous"
is made by observation and testing (Tr. 259). He also
confirmed that he believed that Mr. Swem was scaling material
from about 7:45 a.m. to 8:30 a.m. (Tr. 261). He also confirmed
that he took Mr. Swem's word for the fact that when he asked
him whether the area where he was working was "safe," Mr. Swem
responded that "he felt he wasn't in a hazardous area when
he started scaling" (Tr. 263).
When asked whether the fact that the area where Mr. Swem
was working had been previously pinned influenced his decision
that it was hazardous, Mr. Drake replied "No, it didn't"
(Tr. 264). He further explained as follows (Tr. 265-266):
A. You can have a considerable amount of
loose, but it could be flaky stuff, and
everybody here knows what I'm talking about,
about flaky stuff. But you can have a
considerable amount of loose, pieces as big
as this table, and that's .a different
situation.

Q. Now, you said there were big pieces
barred down from the roof that you saw?
A. No, sir.
feet long.

I said they were two and half

Q.

Those aren't big?

A.

That's what I said.

You asked me what I said.

Q.
Two and a half feet long. They were barred
down from the roof; is that right?

A.

That's correct.

Q. Do you know if any of those followed the
bar down to the miner's arm or hand?
A.

No, I don't.

2611

Mr·. Drake conceded that during the time a company
person was assigned and in the stope area, the company would
be in compliance with the standard in question (Tr. 270).
He also conceded that the individual miner has to check
out his own stope area, and he confirmed that there is no
mandatory standard that requires mine management to inspect
the workplace before a miner is allowed, required, or
assigned to perform work there (Tr. 272-273). He also
conceded that there was no reason for the respondent to
prevent Mr. Swem from going to his stope work area at the
beginning of his work shift (Tr. 273). He also conceded
that within 30 hours after the accident, Mr. Swem told him
that he did not believe the stope was hazardous when he went
in the area to work on Monday morning (Tr. 274).
Mr. Drake confirmed that he did not sign the citation form
issued in this case (Tr. 275), and he confirmed that he and Mr. Paro
decided on Wednesday afternoon, April 29, that the violation of
§ 57.18-25, had occurred on Tuesday, April 28 (Tr. 275).
He also confirmed that Mr. Paro called his supervisor during
the time they were discussing the citation, but Mr. Drake
denied that they discussed the question as to whether a citation
should be issued (Tr. 276). Mr. Drake also confirmed that
his notes do not state that he actually made a determination
as to the stope being a hazardous area (Tr. 279), and he conceded
that a miner is free to make his own determination in this
regard (Tr. 280-281).
Respondent's Testimony and Evidence
Cecil J. Howard, confirmed that he is employed in the
respondent's safety department and that he investigated the
incident concerning Mr. Swem. He described what he observed
at 8:30 a.m. on Tuesday, April 28, 1981, during his visit to
the stope area, and he was of the opinion that no hazardous
conditions existed.
In support of this conclusion, he testified
as follows (Tr. 299-301):
A.
I base that on the soundness of the
hanging with the scaling bar.
If it's good
hanging and that chunk, I agree with you
that it was way up because Earl had fired
six ten-foot holes -- right? It was ten
foot long.
The chunk was partially in the
hanging and in the face and you just couldn't
get ahold of it and scale it down. Otherwise the hanging was all right.

Q.

Was the chunk hazardous?

2612

A. _No, the chunk was no hazard because if
Eurl didn't have help he could have stayed away
from the chunk, he could have worked on the
lefthand side, and, as it was, the stope
was about 15 foot wide and nine foot in the
center and then it parts down and it was pinned
and everything back there, and Earl was firing
on the lefthand side.
He fired this shot ahead and then he was going
to go back and fire the lefthand side through,
so he could have come back and started
drilling, or he could have went out, got on
the phone which was in the area, called up Lance
Richards and said, I believe I have a problem
down here; would you come down and look at this
stope; maybe I'll need some help.

Q. What about the cracks in the hanging and
the seams?
A.
Oh, you always have cracks and seams,
especially in that area where you get layers
upon layers of grounding, but once you sound
them and you can't scale them down there is no
hazard, as long as they're not drummy.

Q.
Did you find anything that was drummy that
day?
A.

That one chunk, near the face.

Q.

Other than that?

A.
No, just a few small pieces I scaled down,
which you can always get.

Q. And you had an opinion that day as to whether
or not that area was hazardous?
A.

That's right.

Q.
And your opinion, which you have already
stated -- ,·
A.

I've already stated.

Q.

-- was that it was not hazardous?

A.

I didn't say it was hazardous, no.

2613

Mr. Howard stated that on the morning and afternoon of
April 28, he sounded and observed the stope in question and
found that it was not hazardous. He confirmed that he was
present when Inspector Paro questioned Mr. Swem about the
rock falling.
Mr. Howard estimated the distance between the
stope where Mr. Swem was working, and the adjacent stope
where John Macrntosh was working as "probably between two
and three hundred feet" (Tr. 305).
On cross-examination, Mr. Howard confirmed that he made
notes of the results of his investigation of the rock falling
incident concerning Mr. Swem, and he made them available
to MSHA's counsel for his examination (Tr. 305-306). He
confirmed that he did not go to the stope the day of the
accident, but went there the next morning. When he arrived,
Mr. Swem and his helper Mr. Cortland Bridge were scaling
(Tr. 308). Mr. Howard stated that after his arrival at
the stope on Tuesday, after Mr. Bridge left, he (Howard)
checked the stope area by scaling it and he indicated that
"we took down a few small pieces but it was good" (Tr. 309).
Mr. Howard stated that the previous Friday, Mr. Swem
had fired six ten foot holes and advanced the stope by some
ten feet.
A "chunk" of material left in a corner of the
stope was then shot down after Mr. Howard sounded it and
discussed it with Mr. Swem (Tr. 311-312). Mr. Howard
indicated that anytime anyone cannot scale alone, they are
free to seek help (Tr. 313). He denied any knowledge of any
prior hazardous roof conditions in the stope, and he indicated
that everytime he visited the stope it was being pinned in
preparation for "taking bottom." He also indicated that
Mr. Swem always controlled his stopes by scaling, pinning,
and screening (Tr. 324). At no time on Tuesday did he
believe the stope was hazardous (Tr. 325).
Lance Richards, testified that on April 27, 1981, he
was the mine foreman, and was Mr. Swem's supervisor. He
stated that on that day Mr. Cortland Bridge was assigned to
check on three men working in stopes which were about 300
feet apart, and that Mr. Swem was one of them. After Mr. Swem
was struck, he (Richards) did not go to the stope because
he wanted to first contact Mr. Howard and the union representative
(Tr . 3 2 5-3 2 7) .
Mr. Richards stated that he visited the stope on Tuesday,
April 28, with Mr. Howard and Mr. LaPlateny. They discussed
some material that was "hanging" on the left side of the stope,
and they also tried to determine what had fallen and struck
Mr. Swem.
Since precautions were being taken in the stope, no

2614.

one believed that it was hazardous (Tr. 330). The loose
muck pile material in the stopes served as an "elevated
platform" for Mr. Swem to work from, and some of the stope
area was screened (Tr. 333).
Mr. Richards stated that Mr. Bridge was assigned
to assist the three stope men, and that his assistance to
them filled both a safety need and sometimes made their
work go faster (Tr. 336). Mr. Bridge was not given specific
instructions, and Mr. Richards indicated that he likes to give
him a little freedom in dealing with the stope men (Tr. 336).
Mr. Richards identified exhibit R-1 as the accident report
that he prepared concerning Mr. Swem's injury (Tr. 337).
Mr. Richards was of the opinion that "the hanging" he
observed in the stope on Tuesday and Wednesday after the
accident was not hazardous (Tr. 340). In support of this
opinion, he cited the fact that the hanging was within reach
and could be controlled (Tr. 342).
On cross-examination, Mr. Richards confirmed that he
did not know how Mr. Swem was scaling the stope prior to
the accident, but he had no reason to believe that Mr. Swem
was doing anything incorrectly. However, if Mr. Swem knowingly
worked ~nder loose material, then that would be a hazard
(Tr. 346). When asked about the "loose" he observed, Mr. Richards
testified as follows (Tr. 349-351):

Q. When you looked at that stope, did you
determine that that stope was hazardous, that
that chunk was hazardous?
A.

That chunk?

Q.

Yes.

A.
If you were standing underneath it and it
fell on you, it would be hazardous.

Q. You recognized that it was hazardous, based
on your observations?
A. He didn't have to be in that particular section
of that stope. We knew it was hazardous and we -we knew it was loose and we've taken care of the
problem.

Q. Okay. Would you describe it for me?
did the loose look like?

What

A.
It's a piece of loose rock, unconsolidated
rock. When you hit it with the scaling bar, the

,2615

sound waves, when they travel through the
rock, are broken, and it gives a dull sound.

Q. Is that what you used to determine it
was hazardous, that chunk?
A.

That the chunk was loose.

Q.

Just that, the sound of it?

A. The sound, yes.
That's how you do it.
You use a scaling bar.

Q. Okay. Now, you didn't go into the area
on the -- on Monday the 27th; is that correct?
A.

No, I didn't go there.

Q. The first time you went into the area was
on Tuesday morning the 28th?

A.

*

Right.

*

*

*

Q. What did you see Cortland Bridge and Earl Swem
do?
A.

What did I see them do?

Q.

Yes, if anything.

A.
I didn't see them doing anything. Like I said,
when I got up there, I talked to John and then John
showed me that one chunk and Cortland and I both
tried it.

Q.

Right.

A.
I wanted to see for myself if two bars would
bring it down. Of course, they wouldn't.
In response to further questions, Mr. Richards stated
that when miners ask for a second man to be present in situations
where hazardous conditions may be encountered, a second man
is provided (Tr. 360). He did not believe that the stope
was unsafe for Mr. Swem to be working alone on either Monday
or Tuesday (Tr. 368).

2616

Larry Streeter, assistant mine superintendent at the
time of Mr. Swem's injury, confirmed that fie first visited
the stope in question on Tuesday afternoon, the day after the
accident, and that he was with the inspection party at that
time (Tr. 370) . Mr. Streeter stated that he observed "routine
scaling" that was to be done that day, and that the distance
between Mr. Swem's stope and Mr. Macintosh's stope was a minute
and ten seconds by walking (Tr. 371). He and Mr. Bridge
went to the adj~cent stopes as part of a "holler test,"
and he stated that "apparently it wasn't heard" (Tr. 371).
Mr. Streeter stated that he heard Mr. Swem tell one
of the inspectors that he was not working under loose ground
and that "he thought he had it secured above his head" (Tr. 371).
He also testified that he heard Mr. Swem state that prior
to the accident, he was scaling on the right side of the
stope and continued to scale out into the stope in front of
the pinned area at the time he was hit (Tr. 372).
On cross-examination, Mr. Streeter reitereated that
he did not believe the stope area was h3zardous when he was
there Qn Tuesday following the accident, and he was of the
opinion that Mr. Swem had the opportunity to do his job
safely because a portion of the stope was pinned and screened,
and he could sound the roof and advance and scale from under
the pinned area, sounding as he went (Tr. 380).
Mr. Streeter indicated that if a miner complained about
an unsafe condition and there was no other person available
to be assigned to help him, the miner would be assigned other
work (Tr. 388).
Arguments Presented by the Parties
In his arguments made during the course of the hearing,
petitioner's counsel recognized the fact that the incident
prompting the issuance of the violation in question took
place over three years ago. However, counsel relies on the
testimony of the inspector and Mr. Swem to support his arguments
that he has established that the cited a~ea was in fact hazardous
(Tr. 2 9 3) •
In its post-hearing brief, petitioner submits that the
factual ~ecord in this case has established, by a preponderance
of the evidence, respondent's violation of section 57.18-25.
Petitioner maintains that the testimony describing the stop~
area where Mr. Swem was struck supports a conclusion that a
hazardous condition existed, and that Mr. Swem was working
alone in the stope where he could not be seen nor heard.

2617

Petitioner maintains that Mr. Swem's failure, if any,
to recognize the hazardous conditions in the stope does not
relieve the respondent of its obligation to comply with the
requirements of sect'ion 57 ... 18-25.
In support of this argument,
the petitioner asserts that the Act establishes a standard
of strict liability for violations of mandatory safety standards,
without regard to fault or negligence, and that the legislative
history of the Act reflects that Congress was particularly
concerned over the high number of mining injuries and fatalities
resulting from inadequate supervision and hazardous workplace
conditions reasonably within the power of management to prevent.
During the course of the hearing, respondent's counsel
argued that unless MSHA establishes that the cited stope area
in question was hazardous, it may not insist that another person
be at or near the stope so as to hear or see him (Tr. 289).
Counsel pointed out that in this case Mr. Swem told the
inspector that he did not believe that the stope area where
h~ was working was hazardous (Tr. 290), and that the inspector's
testimony concerning the amount of material which he claims
was scaled down should be given little weight because the
scaled material resulted from the work of two miners well
after the rock fall incident in question (~r. 2911.
rn short,
respondent's counsel is of the view that MSHA has failed
to establish that the cited area was hazardous, and until
that is established MSHA cannot require the presence of another
person pursuant to the cited standard (Tr. 291).
Respondent's counsel conceded that the incident concerning
the rock which fell and struck Mr. Swem on his hard hat may
be classified as an "accident. 11 Notwithstanding the fact
that the incident was not the type of accident which had to
formally reported to MSHA, counsel asserted that the fact
that it happened does not per se establish that the area where
Mr. Swem was working was "hazardous." Given the fact that
Inspector DRake conceded that had the incident not occurred,
no citation would have been issued, counsel maintains that
the asserted violation may not be su?tained simply because
Mr. Swem was struck by some falling material. Counsel concludes
that the occurrance of such an incident does not establish
that the respondent knew that a hazardou.s condition existed,
and decided to assign Mr. Swem there anyway (Tr. 292).
In its post-hearing brief, respondent points to the
fact that Mr. Swem told Inspector Drake that he knew he
was responsible for his own safety, and that ~espondent's
safety representative, the mine foreman, and the assistant
mine superintendent, all experienced miners, testified that
in their opinion, the stope area where Mr. Swem was working
was not hazardous.
·

2618

The respondent emphasizes the fact that the day following
the accident, Mr. Swem and a co-worker scaled the same stope
before Mr. LaPlatney, the mine superintendent, and Inspector Drake
appeared on the scene, and that no one except Mr. Swem had
an opportunity to observe the conditions that existed at
the time that the rock fell·· and struck his hard hat. At
this time, the condition of the stope had changed, both by
time and by the work done in the immediate area, and the
fact materials had been scaled down is not indicative of
any hazardous condition.
The respondent further points out that the scaling work
conducted by Mr. Swem and the checker assigned to that area
on the morning following the incident in question was for
the purpose of "making the stope safe," and that they were
following their first job requirement to check and secure
their work area in order to "make it safe" before any further
work is done. When Inspector Drake arrived on the scene,
he accepted Mr. Swem's statement that the stope area was
safe to work in, yet he did not accept Mr. Swem's prior
decision the day before that the area was not hazardous.
Respondent maintains that the one person who was in
the best position to testify as to the amount of scaling
done in the stope at the time of the accident was Mr. Swem,
and that his testimony indicated that he did not think that
the area was hazardous. Further, although Mr. Swem conceded
that he could have asked for additional help while he was
in the stope prior to the time he was struck if he thought
the area was hazardous, he did not do so.
Respondent points out that normal mining practice calls
for the scaling and barring down of materials after a shot
is fired, and miners are instructed to find a safe way in,
a safe place to stand, and to start scaling to make additional
areas safe. On the facts of this case, respondent asserts
that when Mr. Swem went to his stope work area on Monday,
April 27, 1981, after having last fired his shot on his
previous work shift on Friday, April 24, 1981, he determined
that he had a safe way in, that he had a safe place to stand,
and then began to scale~ In short, since he was the miner
on the scene, he made the determination that it was safe
to attend to his work.
Respondent argues that it had no reasonable opportunity
to inspect the stope prior to the time Mr. Swem started his
work in the stope on Monday, April 27, 1981. Even so,
respondent maintains that its supervisory officials would not
have made any prior determination any differently than that
made by Mr. Swem on the scene, and that they would have
relied on his determination that he had a safe place to work.

2619

With regard to union representative LaPlatney's testimony,
respondent asserts that his motivation in reporting the
incident concerning Mr. Swem to MSHA, was an attempt to force
the respondent to provide two men for each job performed in
the stope. Respondent maintains that Mr. LaPlatney's testimony
reflects that had the respondent provided a second man for
each stope miner, or agreed to future discussions in this
regard, he would not have notified MSHA. Respondent concludes
that MSHA was responding to a union attempt to increase
the working force, and not to a safety hazard.
Respondent further points out that Mr. LaPlatney could
not affirmatively state that the stope area was hazardous,
and that he admittedly failed to follow the agreed upon labormanagement procedure requiring the union to call the respondent's
attention to any alleged hazardous condition.
Findings and Conclusions
In this case the respondent is charged with permitting
Mr. Swem to work alone in a hazardous area where he could
not be seen• or heard in the event of an emergency situation
jeopardizing his safety. Since the petitioner has the burden
of proof, it must establish that the stope area where Mr. Swem
was assigned to work was hazardous, and that notwithstanding
this fact, it nonetheless permitted him to work there, thereby
exposing him to the hazard of being struck by falling material.
In my view, the cr1tical issue here is whether or not the
respondent could reasonably be expected to know that the stope
area in question was in fact hazardous, and whether or not
it took reasonable steps to preclude the type of "accident"
which occurred in this case.
The condition precedent to any
finding of a violation lies in the clear language of the
standard which requires an initial showing that hazardous
conditions existed at the time a miner is "assigned, or
allowed, or required to perform work alone."
There is no dispute here that Mr. Swem was working alone
at the time he was struck on Monday, April 27, 1981. Further,
there is no dispute that the tests conducted during the
investigation of this incident established that anyone working
in the stope could not be seen or heard by other miners working
in the adjacent stopes in the event he cried out for help.
Petitioner relies on the testimony of Mr. Swem to support
its conqlusions th~t the stope area where he was working on
Monday, April 27, 1981, was hazardous, and that since his
cries could not be heard, a second miner should have been
assigned to work with him. Notwithstanding the fact that

2620

Mr. Swem readily conceded that he believed he was safe and
did not consider his immediate work area to be hazardous,
petitioner relies on his testimony that the roof area where
he was struck was in a "bad condition" and had some "cracks
and slips" in it. Petitioner also cites Mr. Swem's testimony
that following the accident, and beginning on Tuesday, April 28,
1981, Mr. Swem and miner helper Bridge continued to scale
the stope area in order to "make the stope safe," and that
Mr. Swem observed that the roof area contained some "hanging"
material that sounded "drummy."
There is a conflict in the testimony and evidence as
to whether or not the stope area where Mr. Swem was working
on Monday, Apfil 27, 1981 was hazardous. Mr. Swem, the
miner who was struck by a rock or other falling material,
testified that he believed the area where he was working in
was safe, and he indicated that after testing the roof areas
and following his normal scaling procedures:: in order to make
his work area safe, he felt comfortable in the stope.
The record in this case establishes that the stope area
in question was fired during thE last shift worked by Mr. Swem
on Friday, April 24, 1981, before he next returned to work on
Monday, April 27, 1981. Since he was the first miner on the
scene and would necessarily be more closely concerned with
his own safety, his candid admission that he believed the
area was safe to work in is, in the circumstances, the best
evidence as to whether or not the stope conditions were
hazardous. This is particularly true here where the alleged
violation occurred over three years ago.
In the circumstances, I
have accorded substantial weight to Mr. Swem's testimony
in this regard.
Respondent's unreb~tted testimony is that it had assigned
Mr. Cortland Bridge as an extra helper to assist the three
stope miners who were working on Monday, April 27, 1981, and
Mr. Swem conceded that Mr. Bridge was serving as a "circulating
miner" and was available to check out the stope miners and
tc\ help them scale as needed. :Further, three company officials,
all of whom are experienced miners, visited the stope area
in question the day following the accident and testified
that they believed the area was not hazardous. The union
representative who also visited the same area that same day
with the inspection party could not state with any degree ·
of certainty whether or not the area was hazardous. Mr. Swem,
who had .been scaling the area with Mr. Bridge during that day,
told the inspector that the area was then safe and not hazardous.
Faced with all of these facts, Inspector Drake chose to
believe Mr. Swem's evaluation that the area was then safe and

2621

not hazardous., but apparently chose not to believe his candid
admissions that the conditions the day before were not
hazardous and that he felt "comfortable" and safe working
in the stope. M'.Jre suprisingly, petitioner relies on the
scaling work done by Mr. Swem and Mr. Bridge the day after
the incident in question to support a theory that the
existence of this material prior to its being scaled down
establishes that the area was hazardous the day before.
I
find petitioner's position in support of its case to be
contradictory.
Petitioner also relies on Inspector Drake's after-the-fact
evaluation of the stope to support its assertion that the
stope was hazardous when Mr. Swem initially reported there
to begin his work. After careful review and consideration
of Mr. Drake's testimony, I conclude that it is contradictory
and equivocal and does not support petitioner's arguments
that it has proven its case by a preponderance of the evidence.
My reasons in support of this conclusion follow below.
Inspector Drake's direct testimony that he considered
the stope area in question to be hazardous because prior
scaling and pinning in the area led him to believe that
there had been a preexisting "problem," is contradictory.
On cross-examination, he denied that the previous pinning
influenced his decision that the area was hazardous.
In view of Inspector Drake's recognition of the fact
that a miner is free to make his own determination as to
whether or not his work area is hazardous, I find it
rather strange that he would accept Mr. Swem's determination
on the day following the accident that the stope was at
that time not hazardous and safe, yet reject or ignore that
very same determination made by Mr. Swem the day before
when he was working in the same stope.
Inspector Drake
conceded that Mr. Swem told him that he did not believe the
stope was hazardous when he went to work on Monday morning,
yet Inspector Drake concluded that at the time of the accident
the area was hazardous. He did so after he and fellow Inspector Paro
discussed the matter further during a close-out conference
held after the inspection party left the stope area at the
conclusion of the accident inspection. /Since Inspector Paro
is no longer employed by MSHA and did not testify in this
case, any observations that he may have made at the time he
signed and issued the citation are not available.
I take note of Inspector Drake's candid admissions that
during his discussions with Inspector Paro prior to the

2622

issuance of the citation, Mr. Paro telephoned their supervisor.
Although Mr.· Drake denied that they discussed the question
as to whether a citation should be issued, I cannot believe
that this call was totally unrelated to the accident inspection
conducted by Mr. Drake and Mr. Paro.
I also take note of
Inspector Drake's testimony that his contemporaneous notes
made at the time of his inspection do not reflect that he
made any determination that the stope area in question was
hazardous.
I take particular note of Inspector Drake's testimony
that he cited section 57 .18-25, because no other standard was
appficable to the facts presented.
It seems to me that absent
any facts to support the contention that the area was in
fact hazardous, and that the respondent somehow permitted
Mr. Swem to enter a work area which endangered his safety, an
inspector should not rely on after-the-fact speculative
conclusions simply to justify or support a violation which
he may feel compelled to issue in response to a complaint
for an accident inspection or investigation.
Petitioner's arguments imply that the respondent should
have made a determination that the stope area where Mr. Swem
was working on Monday morning was hazardous, and that recognizing
this fact, respondent had an obligation to assign a second
miner to work with Mr. Swem. This argument is not well taken.
Aside from the fact that Inspector Drake admitted that he
did not review any mine inspection records, and could not
recall whether he asked mine management whether the stope
had been inspected before Mr. Swem arrived there Monday morning,
he conceded that there is no mandatory standard requiring
management to inspect the workplace ·before a miner is allowed,
required, or assigned to perform any work. It seems to me
that if MSHA wishes to impose such a requirement on a mine
operator, then it should seriously consider promulgating a
standard to cover just such a situation.
I also take particular note of Inspector Drake's testimony
in explanation as to why he felt compelled to cite section
57.18-25. At page 390 of the hearing transcript, he stated
that "There wasn't any other violation, as far as I'm concerned.
The man was there taking down the loose/ That's all you
could reasonably expect a man to do. He was working at the
situation at the tim~~ (Tr. 290).
In my view, this is the
essence of this case. Mr. Swem was working in a stope which
he cons~dered safe and not hazardous, and was going about
his business making the area safe by scaling so that he could
continue his work.
It is unfortunate that the unexpected
event occurred, and fortunate that he was not seriously injured.
However, on the facts of this case, I cannot conclude that
the respondent's failure to comply with the cited standard
was the proximate cause of this incident.

2623

I reject the petitioner's reliance on Mr. Swem's
testimony as to the conditions of the roof area in the stope
to support the notion that the area was "hazardous," thereby
requiring the presence of a second miner. Mr. Swem was obviously
aware of these conditions and that it is precisely why he
was following his normal precautionary procedures to test
and scale as he went about his work.
lt seems to me that if
he was really concerned about these conditions to the point
where he felt he needed assistance and a second miner present,
he had ample opportunity to summon such assistance. However,
on the record here, he admitted that he felt safe and comfortable
in the stope. Had he believed otherwise, he was free to leave
work as he had done in the past when he felt exposed to hazardous
conditions.
In view of the foregoing findings and conclusions, I
conclude and find that the petitioner has failed to establish
by a preponderance of any credible evidence that the stope area
where Mr. Swem was working on Monday, April 27, 1981, was a
hazardous area known to the respondent, and that the fact
that Mr. Swem was working there alone does not establish
a violation of section 57.18-25, by the respondent. Accordingly,
section 104(a) Citation No. 201695, served on the respondent
on April 29, 1981, IS VACATED, and this case IS DISMISSED.

ti 4.~
/L~Koutras
Administrative Law Judge

Distribution:
William M. Gonzalez, Esq., U.S. Department of Labor, Office of
the Solicitor, 1515 Broadway, New )'.'ork, NY 10036 (_Certified Mail)
Sanders D. Heller, Esq., 23 Main Street, Gouverneur, NY
13642 (Certified Mail)

/slk

2624

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

NOV 16 1984

DISCRIMINATION PROCEEDING

ALBERT VIGNE,
Complainant

Docket No. SE 84-2-DM
MD 83-51

v.
GALL SILICA MINING COMPANY,
Respondent

No. 2 Mine and Plant

DECISION
Appearances:

Albert Vigne, Lake Wales, Florida, pro se;
Michael D. Malfitano, Esq., Macfarlane,"E'erguson,
Allison & Kelly, Tampa, Florida, for Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the complainant Albert Vigne against the respondent pursuant
to section 105(c) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. Mr. Vigne filed his initial
complaint on June 8, 1983, with the Secretary of Labor, Mine
Safety and Health Administration (MSHA), claiming that his
discharge on or about April 29, 1983, as a supervisor of
the drying plant was discriminatory in that it was based on
"my concern for safety there and my cooperation with MSHA
representatives." Following an investigation of his complaint,
MSHA determined that a violation of section 105(c) had not
occurred, and Mr. Vigne filed his pro se complaint with this
Commission.
Although both parties were provided with an opportunity
to file post-hearing arguments, only the respondent did so.
However, Mr. Vigne did file certain information concerning
his contested unemployment compensation claim with the State of
Florida, including copies of the findings of a State appeals
referee whc upheld his claim.
Issue
The critical issue in this case is whether Mr. Vigne's
discharge was in any way prompted by his engaging in any
protected activity under section 105(c) of the Act, or whether
it resulted from differences with his superior regarding his
work responsibilities.

2625

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seq.
2.
Sections lOS(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815(c) (1), (2)
and ( 3) .
3.

Commission Rules, 29 C.F.R.

§

27001., et seq.

Testimony Presented by the Complainant
Albert Vigne testified that approximately six or seven
months before his termination in April 1982, MSHA Inspector
Gene Weaver made a "courtesy" inspection of the mine, and
issued several memorandum "citations" regarding the lack of
guards around several belts and chains. Mr. Vigne stated
that he wrote up some work orders to correct the conditions
pointed out by Inspector Weaver, and that he also advised
Mr. Tony Haire, the plant supervisor, about the conditions
in question (Tr. 8-13).
Mr. Vigne stated that he continued writing work
orders for a period of five months, and that he wrote up
five or six of them in an effort to correct the conditions
brought to his attention by Inspector Weaver (Tr. 13).
After Mr. Weaver's visit, MSHA Inspector Richardson visited
the mine, and after finding that the conditions had not been
corrected, he issued citations for a lack of guards on certain
belts on the bagging machine belts and conveyors, and the
belt en the second floor sand hopper (Tr. 17-18). The citations
were not served on Mr. Vigne, and he did not know who they
were served on. However, he believed that fines were served
on the respondent as a result of the citations (Tr. 19).
Mr. Vigne stated that shortly after the citations were
issued, Mr. Haire came to his work area and indicated that
a large hopper outside the dry plant building needed painting.
Mr. Vigne assigned some men to paint the hopper, but the
next day, Mr. Haire returned to the area and informed Mr. Vigne
that he wanted him to paint it. Mr. Vigne stated that he
informed Mr. Haire that he was a supervisor and was not
required to do manual labor. Mr. Haire informed him to
"think it over" and left. The next day, Mr. Vigne informed
Mr. Haire that he still objected to painting the hopper, and
Mr. Haire put him on notice that he would be terminated in
one week. When asked why Mr. Haire terminated him, Mr .. Vigne
replied as follows (Tr. 22-23):

2626

Q. · When Mr. Haire told you that he was going
to give you one week's notice, is that the way
he put it?
A.

I'm going to give you one week's notice.

Q. Did you have any discussion with him as to
the whys and the wherefores, or did you simply
accept what he told you?
A. No, I knew that he wanted to get rid of me.
That was evident.

Q. What made you believe that he wanted to get
rid of you?
A.

Just his attitude toward me.

Q.

That day?

A.

Not only that day, but other days also.

Q.

What was his attitude toward you on other days?

A. Like he didn't really have any -- didn't have
any confidence in me, or just -- I would say
contemptuous attitude almost.
Mr. Vigne testified that at the time he was terminated,
Mr. Haire made no mention of the MSHA inspections, and Mr. Vigne
did not mention them (Tr. 25). Mr. Vigne also stated that
he had never complained to any MSHA or state mine inspectors
about any safety matters, and that he never complained to
respondent's safety department (Tr. 26). He also confirmed
that he never discussed such matters with Mr. Haire (Tr. 26).
Mr. Vigne stated that at the time of his discharge he
was employed by the respondent as the drying plant supervisor,
and that he was first hired in October 1977. His salary was
$235 a week, plus a company hospitalization plan to which
he contributed, paid vacations, and a gqs allowance (Tr. 28).
No overtime pay was provided, and since his termination he
has worked as a maintenance person in a mobile home park
and for the Procter and Gamble Company (_Tr. 29).
Mr. Vigne stated that he was not given any written
termination notice and that Mr. Haire simply told him that
"everybody is going to work" (Tr. 29}. Mr. Vigne also confirmed
that after a contest with the State of Florida, he received
unemployment benefits (Tr. 30), and that he was currently
employed at a mobile home park (_Tr. 31).

2627

When asked why he believed he was discriminated against,
Mr. Vigne replied as follows (Tr. 32; 35~36):
A. Well, I think that after Mr. Richardson came,
I feel that I talked to him about some things that
were going on around there other than, you know,
the things that he wrote up.
I feel that because
of my conversation with him he was able to see
other discrepancies, and I think Tony Haire realized
this.

*

*

*

Q. Okay. Now, as a result of that conversation,
what did Mr. Richardson do, or what could he
have done that -A.

Well, I think that --

Q.

Mr. Vigne, let me finish.

A.

I'm sorry.

Q. That's okay. What could he do or what could
he have done that would have caused some problems
with mine management, which in turn would have
caused some problems for you?
A. Well, I think he could have gone and looked
in certain areas and caught things that he might
not have caught before, and I'm sure that the
people involved -- through that, somebody had put
a bug in his ear, so to speak.

Q.

Did he do that, do you know?

A.
I think he did.
I mean, I didn't follow him
around, but that's the impression that I got from
comments that I heard.
Q. Would Mr. Haire have beer, -- would Mr. Haire
have been aware of your conversations?
A. He would have been probably the first one that
was aware of it at the time, I would imagine.

Q.

Why would that be?

A. Well, Mr. Haire ~s a very intelligent man, and
I would say that Mr. Haire stays on top of everything.
He and his people keep him informed about everything
or else they don't remain his people.

2628

Q. Well, let me ask you this, though. What
specifically could Mr. Richardson have done that
would have involved Mr. Haire as far as you were
concerned?
A. Well, he could have gone -- he could have came
in at inopportune times.
In other words, you
know, you can pretty well say well, it's been six
months since MSHA has been here, you know, we're
going to kind of start looking for him. But let's
say they were here yesterday and then they came
back a week-and-a-half later, and that would surprise
everybody.
Q.

Did that happen, do you know?

A.

I heard that it did after l left.

In response to questions from respondent's counsel,
Mr. Vigne testified as to his duties as the dry plant supervisory
foreman, and he confirmed that he has had no contact with
MSHA Inspector Richardson since his termination (Tr. 40-44).
He also confirmed that he did not inform Mr. Haire or Mr. Dibble
about any of his conversations with Inspector Richardson (Tr. 44).
Mr. Vigne stated that Inspector Richardson would have
issued the citations evern if he (Vigne) had not discussed
the work orders with him (Tr. 52). Regarding his own responsibility
for the conditions which were cited by the inspector, Mr. Vigne
testified as follows (Tr. 53-54):
Q.

Were you with him during the inspect.ion?

A.

Yes.

Q. Did he point things out to you during the
inspection that were violations of safety?
A. Yes. We had to move a ladder that was on
the wrong side of the hopper or something.
Q. Now, as the foreman of the dry plant, and the
person who;~s in complete charge 6£ the plant,
as you testified, were you aware of these violations
before Mr. Richardson came in?
A. No, not all of them, because when you have two
different inspectors, one inspector may look at
something and not consider it unsafe, where another
inspector would look at it and consider it unsafe.

2629

I remember one time in the past there was
a railing that stopped at the end of a catwalk
and had been there for years, and nobody had
ever said anything about it, but I don't remember
which inspector it was, it might have been
Richardson, but we had to have another piece on
that railing. And that's dangerous, but nobody
had ever said it was dangerous to me before.

Q.

Did you consider it dangerous?

A.

It would possibly be, you know.

Q. Did you ever make any effort to do anything
about it'?
A. Well, I never noticed it in that light until
he called it to my attention; let's put it that
way.

Q. But as a supervisor, you are in complete
charge of safety for the dry plant; is that correct,
or were -A. Well, I would say as a supervisor, I think
each supervisor is more or less responsible for
safety in his own department.
Mr. Vigne conceded that his superior had criticized
his work in the past, but he denied that he had ever been
formally disciplined about his work (Tr. 59). He confirmed
that he voluntarily left the respondent's employ for about
two years, beginning in June 1979, but was asked to come back
(Tr. 58-60) .
Mr. Vigne stated that while Mr. Dibble mentioned a job
in the scale house to him after he was terminated, he was
not formally offered the job, and he conceded that he was
not interested in the position. He denied that Mr. Haire
ever mentioned that job to him, and he also denied that he
turned down Mr. Haire's offer to work i~ the scale house (Tr. 63).
Testimony Presented by the Respondent
Anthony T. Haire, respondent's General Mine Superintendent,
testified that he assumed supervisory authority over the dry
plant on February 19, 1983, and that he discussed several problems
with the plant operations with Mr. Vigne. These problems included
closer supervision over the men, updating and cleaning the plant,
and a desire to increase production. Mr. Haire stated he told
Mr. Vigne that he should spend less time in his office and more
time supervising and being with his men (Tr. 65-68).

2630

Mr. Haire stated that after his conversations with Mr. Vigne,
his work performance did not improve, and production did not
increase significantly. He had further discussions with Mr. Vigne,
and when he visited the plant Mr. Haire found that men were
engaging in horseplay, and that the plant was not kept clean,
and broken bags of material were "strung around the plant"
(Tr. 70). When asked about Mr. Vigne's reactions to his
instructions, Mr. Haire stated as follows (Tr. 70-72}:

A. Well, the favorite thing was that I'm not
going to do any manual work. He said he was hired
as a supervisor and I tried to explain to him,
which I did several times, that Gall is a small
operation, and that everybody works.
I work with
any department that needs me, if I got to get out
there, and whatever it takes to get something done,
I do it.
Q.

You do physical labor?

A.

Yes, I do.

Q. Do any of the other department foremen do
physical labor?
A.

*

Yes, they do.

*

*

Q. When you had these early conversations with
Mr. Vigne right after you.took over, did you
explain to him that you wanted him to be a working
foreman like your other foremen?
A.
I didn't actually tell him to get over there
and get with it, you know, I mean if the manpower
is there to do the job, if all his help is there
in a day's time, then there is no need for him to
actually get over there and do bodily labor, no.
But I expected him to be there, you know, walk
through every once in a while and check and make
sure that work is being done properly.

Q.

And he wasn't doing that?

A. No, he was -- he would go over there, yes, but
once or twice a day. And that's quite a long time
when you got production to get out.

2631

Q.

And he wasn't doing that?

A. No, he was -- he would go over there,
yes, but once or twice a day. And that's
quite a long time when you got production to
get out.

Q.

Okay.

A. But if men would not show up we would have
a tardy -- I'm shorthanded, I can't get much today,
which that was no good for production because like
I way, we're small people. If need be, I can try
to pull a person from another department to fill
in if I can, but I can't always do that.

Q. So if Mr. Vigne was shorthanded he didn't
pitch in and help?
A.

No, sir.

Q.

Did production suffer as a result of that?

A.

Yes, sir, it did.

Mr. Haire confirmed that he asked Mr. Vigne to paint the
legs of the hopper silo, and that he did so after finding
him on numerous occasions sitting in his office reading books
(Tr. 75). Mr. Haire stated that Mr. Vigne refused to do any
painting because "he figured he was above it" (Tr. 75).
Mr. Haire stated that Mr. Vigne's refusal to paint was not
the cause for his termination, and that he was terminated
because of low production, his inability to get his men to
work and get the work done (Tr. 75).
Mr. Hai~e stated that Mr. Vigne's prior supervisor,
Charlie Meadows, disciplined him for poor supervision. Mr. Haire
identified exhibit R-l, as a May 29, 1979, document which was
placed in Mr. Vigne's personnel file, and he indicated
that it instructed Mr. Vigne as to how to perform his job
"step-by-step" (Tr. 76).
Mr. Haire confi~med that MSHA conducted an inspection
at the dry plant, beginning on March 2, 1983, and that 12 out
of 13 total citations concerned conditions in the dry plant.
Two citations were guarding citations for which civil penalties
were assessed. Mr. Haire indicated that he shut.the operation
down, and that all of the citations were abated within eight
hours (Tr. 86-87).

2632

Mr. Haire confirmed that Mr. Vigne had submitted "work
orders" for the two guarding citations, but that he had not
submitted any for the conditions cited in the other 10 citations,
nor had he brought these conditions to his attention, or to the
attention of anyone else (Tr. 88). Mr. Haire stated that
Mr. Vigne was not required to submit any work orders to
correct the conditions cited as guarding violations, and
that he had the authority to get a welder to do the work
(Tr. 89-90). Mr. Haire denied that Mr. Vigne was terminated
because he issued wor~ orders pertaining to the guards,
or because he informed Inspector Richardson of this fact
(Tr. 90-91). He also denied that the inspection had anything
to do with Mr. Vigne's termination (Tr. 91).
Mr. Haire stated that after he informed Mr. Vigne that
he was to be terminated, he offered him a job in the scale
house, but Mr. Vigne refused it. Mr. Haire also indicated
that he tried to get him a job in a hardware store operated
by the respondent, but there were no openings (Tr. 93).
Mr. Haire stated that he has never met Inspector Weaver,
but that he does know Inspector Richardson (Tr. ~120). He
confirmed that when he terminated Mr. Vigne he did not discuss
the MSHA citations with him, nor did he mention that he was
displeased with the fact that the citations may have resulted
from Mr. Vigne's shortcomings (Tr. 125).
Mr. Haire confirmed that Mr. Vigne did not contact
Inspector Richardson to come to the plant to conduct an
inspection (Tr. 127). Mr. Haire also confirmed that he was
with Inspector Richardson at the time the citations issued,
and that Mr. Vigne was also present (Tr. 129).
Mr. Haire stated that Mr. Vigne was not given any written
notice of termination, and that the off er made to him for
the scale house job would not have been a significant reduction
in pay (Tr. 133-134).
Donald R. Bridges, respondent's Dry Plant Foreman,
testified as to his duties and responsibilities, and he
stated that when he was operating the scales two truck drivers
complained to him that there was not enough sand ready for
loading and that this was Mr. Vigne's responsibility (Tr. 137141). He also indicated that when he was the dry plant foreman,
he had the authority to fix any equipment which posed a safety
problem without writing a work.order (Tr. 141).
On cross-examination, Mr. Bridges conceded that there
were times when Mr. Vigne requested a loader that he had

2633

to wait at least 40 minutes for this service (Tr. 143).
Mr. Bridges denied that he ever threatened Mr. Vigne with
harm if he complained to Mr. Dibble about the lack of a
loader (Tr. 143-144).
Mr. Vigne was recalled as the Court's witness, and he
confirmed that Mr. Haire never held him personally accountable
for the citations which were issued by Inspector Richardson
and that he (Vigne) never complained to Mr. Richardson,
but simply showed him the work orders which he had submitted
for the abatement work to be done (Tr. 149). He also
confirmed that at no time did he contact MSHA to complain
about any of the conditions which resulted in the issuance
of the citations (Tr. 150).
Mr. Vigne examined his "Personnel Envelope File" which
was produced by the respondent's counsel, and he confirmed
that it was in fact his personnel file maintained
by the respondent. He confirmed that in connection with
an unemployment compensation claim which he filed when he
left the respondent's employ in 1979, he indicated that he
quit his job because of a salary dispute with his supervisor,
and that this was true (Tr. 150-152).
With regard to his unemployment compensation claim
which he filed in connection with his May 6, 1983, termination,
Mr. Vigne confirmed the accuracy of a statement on a form
completed by the respondent that he was discharged because
of a "disagreement over job duties" with his "new supervisor."
He also confirmed that the disagreement concerned Mr. Haire's
desire that he perform "labor tasks" and his (Vigne's) disagreement
over this issue (Tr. 154). Mr. Vigne also confirmed the
accuracy of the following statement which was included on
the form submitted by the respondent in connection with his
unemployment compensation claim (Tr. 155):
While under new supervision, Mr. Vigne was
instructed on the new routine to be maintained
at the drying processing plant. He failed to
comply with these instructions and would not
work as a laborer, since he was hired as the
foreman.
After this conversation he was asked
to termina.t:e his employment.
Mr .. Vigne confirmed that the aforesaid characterization
of the circumstances under which he was terminated were
accurate (Tr. 157), and he reiterated that he did not believe
that Mr. Haire was aware of the fact that he had spoken to
Inspector Richardson about the citations which he issued
(Tr. 172) .

The information provided by Mr. Vigne in connection
with his unemployment claim, reflects an initial determination
made by a claims adjudicator on May 27, 1983, in which it
was found that Mr. Vigne was discharged "for failure to
comply with supervisory instructions." The adjudicator
concluded that this amounted to "misconduct connected with
work," which disqualified Mr. Vigne from receiving unemployment
benefits.
On appeal of the adjudicator's decision, the refere~
reversed the adjudicator's determination, and ruled that
Mr. Vigne's refusal to do manual work, as directed to by
his supervisor, was justified. The referee found that since
Mr. Vigne had been doing supervisory work in the past, it
was unreasonable to expect him to do manual labor at hourly
wages, and that since this was tantamount to a "demotion,"
Mr. Vigne had good cause to refuse his supervisor. Accordingly,
while the referee found that Mr. Vigne had in fact been
discharged, he ruled that the discharge was not "for misconduct
connected with his work," and he reversed the adjudicator's
conclusion in this regard.
Respondent produced copies of two documents filed in
connection with unemployment compensation claims filed by
Mr. Vigne while employed with the respondent. One document
is the form completed at the time Mr. Vigne applied for
benefits when he was terminated in May 1983 (Tr. 154-155).
The form contains a statement by Mr. Vigne that he was
discharged because "new supervisor and I had disagreement
over job duties." The second document is a State of Florida
Notice of Claims Determination, dated June 28, 1979, which
advises Mr. Vigne that he is disqualified for certain
unemployment because he quit his job because of a conflict
with his supervisor, and that his quitting was without good
cause attributable to his employer.
Findings and Conclusions
In order to establish a prima f acie case of discrimination
under section 105(c) of the Mine Act, a. complaining miner
bears the burden of production and proo"f to establish (1) that
he engaged in protec~ed activity and (2) that the adverse
action complain'ed of' was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co. v.
Marshall, 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v .. Marshall,
663 F.2d 1211 (3d Cir. 1981); and Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981). The operator may rebut the prima facie case by

showing either that no protected activity occurred or that
the adverse action was in no way motivated by protected
activity.
If an operator cannot rebut the prima facie case
in this matter it may nevertheless affirmatively defend by
proving that (1) it was also motivated by the miner's
unprotected activities, and (2) it would have taken.t~e.
adverse action in any event for the unprotected activities
alone. The operator bears the burden of proof with regard
to the affirmative defense. Haro v. Maga Copper Co.
4 FMSHRC 1935 ' 1937 (November 1982). The ultimate burden
.
of persuasion does not shift from the complainant. Robinette,
3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC, 7l~ ___F_~2d __ l94
·(6th Cir. 1983); and Donovan---V:-Stafford Construction Co.,
Nos. 83-1566, D.C. Cir. (April 20, 1984) (specifically
approving the Conunission's Pasula-~obinette test) • . The
Supreme Court has appro~ed the Nat~onal La~or ~e~ati~ns
Board's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act. NLRB v.
Transportation Management Corp.,
U.S.
, 76 L. Ed. 2d
667 (1983).
.

On the facts presented in this proceeding, I cannot conclude
that there is any credible evidence to suggest or support
any theory that Mr. Vigne 1 s discharge was in any way connected
with any protected activity on his part. There is no evidence
of any protected work refusals or retaliation for such activity,
nor is there any evidence that Mr. Vigne made any safety
complaints to mine management, to MSHA, or to any state or
local mining authorities. The thrust of Mr. Vigne's case
seems to be that when an MSHA inspector inspected the mine
following a previous "courtesy visit" by another inspector,
Mr. Vigne "cooperated" with the inspector, and pointed out
certain safety infractions to him.
In addition, Mr. Vigne
asserted that when questioned by the inspector as to why
the cited conditions had not been corrected, Mr. Vigne
advised him that he had submitted certain "work orders" to
correct the conditions, but had been unsuccessful. After
the inspector issued certain citations charging the respondent
with several violations, Mr. Vigne suggests that Mr. Haire
was somehow offended, and retaliated by firing him.
Mr. Vigne conceded that at the tim~ he was informed that
he was going to be fired, there were no discussions about
any MSHA inspections/. and Mr. Haire never mentioned them.
Mr. Vigne also conceded that even if he had not mentioned
the work_ orders, Inspector Richardson would have issued the
citations anyway. Given the fact that the conditions which
prompted the citations issued by Inspector Richardson were

2636

initially discovered by Inspector Weaver and called to
Mr. Vigne's attention, I cannot conclude that Mr. Vigne
was cast in the role as the one who initiated the inspection
or that his complaints prompted the issuance of the citations.
Since Mr. Vigne was the supervisor responsible for the area
where some of the conditions were cited, I believe it was
only natural for him to attempt to mitigate his own
responsibility for the conditions by bringing the work orders
to the attention of the Inspector. Mr. Haire testified that
he was aware of only two work orders concerning equipment
guards, and he denied any knowledge of other work orders
submitted by Mr. Vigne, and indicated that Mr. Vigne never
discussed them with him. Mr. Vigne admitted that he never
mentioned any of his conversations with Inspector Richardson
to Mr. Haire or others in mine management, and he admitted
that as a supervisor, he had a responsibility for safety
conditions in those area under his supervision.
The record in this case strongly suggests that Mr. Vigne
and certain individuals in mine management did not get along
too well. Mr. Vigne conceded that his work had been the
subject of past criticism by a superior, and while he indicated
that he left the respondent's employ voluntarily on a previous
occasion and was then asked to return, the fact is that he
was gone for approximately two years and that his departure
came after some conflict with his supervisor.
With regard to Mr. Vigne's termination in April 1983, I
find nothing here to support a conclusion that Mr. Vigne
was fired for exercising .any protected safety rights. Having
viewed Mr. Vigne and Mr. Haire during the course of their
testimony in this case, including their demeanor and temperment,
I am clearly convinced that they have a personal dislike
for each other. I am also convinced that Mr. Haire was not
too enchanted with Mr. Vigne's work performance and attitude
toward his work when he assumed supervisory responsibilities
over him.
I am also convinced that Mr. Vigne resented
Mr. Haire's supervisory authority, and resisted efforts
by Mr. Haire to assign work to him which Mr. Vigne found
demeaning to his status as a supervisor. Although Mr. Vigne
may have been justified in resisting Mr. Haire's attempts
to assign him other work, that is a mat'ter best left
to mine management . . since Mr. Vigne was a supervisor
and part of mine man'agement, and absent any evidence that
any protected rights under the Mine Act have been violated,
I believe that any difficulties encountered by Mr. Vigne
with an upper echelon supervisor of this rather small company
is a private matter best left for resolution by those parties.

2837

I take particular note of Mr. Vigne's testimony concerning
the circumstances surrounding the discharge in issue in
this case. In a statement attributed to Mr. Vigne which
appears on a state unemployment compensation form, he purportedly
stated that "new supervisor and I had disagreement over job
duties," and that this was the reason he gave for his discharge.
During the hearing, Mr. Vigne acknowledged the accuracy of
this statement, as well as another statement indicating
that his discharge resulted from his failure to comply with
instructions from his supervisor over work assignments.
In
both instances, Mr. Vigne admitted that the supervisor in
question was Mr. Haire. Under the circumstances, these
admissions by Mr. Vigne, made shortly after his discharge,
strongly support the conclusion that his discharge was
prompted by his inability to get along with Mr. Haire, and
his failure to follow Mr. Haire's instructions and orders
concerning his work.
The fact that Mr. Vigne ultimately prevailed on his claim
for unemployment compensation before the State of Florida
is not relevant in this case before me. Although the unemployment
referee concluded that Mr. Vigne's refusal to follow Mr. Haire's
instructions concerning his work did not amount to "misconduct"
for purposes of disqualifying him for benefits, his conclusion
in this regard is not controlling to the facts presented in
the case before me. The issue before me is whether Mr. Vigne's
discharge was in any way connected with or prompted by, the
exercise of any protected safety rights he had under the
Federal mine safety and health law.
I have concluded that
it was not.
Conclusion and Order
In view of the foregoing findings and conclusions, and
after careful consideration of all of the evidence and
testimony adduced in this case, I conclude and find that the
complainant here was failed to establish a prima f acie case
of discrimination on the part of the respondent. Accordingly,
the complaint IS DISMISSED, and the complainant's claims for
relief ARE DENIED.

~~,,<-~,~
'tf~t'rge /](. Koutras
Administrative Law-Judge
Distribution:
Mr. Albert Vigne, 436 Acacia Walk, Lake Wales, FL 33583
(Certified Mail)
Michael D. Malfitano, Esq., Macfarlane, Ferguson, Allison & Kelly,
Box 1531, Tampa, FL 33601 (Certified Mail)
/slk

2638

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

NOV 16 1984
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 84-122
A.C. No. 46-03138-03513

v.
Docket No. WEVA 84-123
A.C. No. 46-03138-03514

ZAPATA COAL CORPORATION,
Respondent

Docket No. WEVA 84-149
A.C. No. 46-03138-03515
Monclo Prep. Plant
Boone No. 2 Prep. Plant
ZAPATA COAL CORPORATION,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. WEVA 84-17-R
Citation No. 2139599; 10/17/83

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

Docket No. WEVA 84-18-R
Citation No. 2139587; 10/6/83
Docket No. WEVA 84-19-R
Citation No. 2139593; 10/11/83
:

Docket No. WEVA 84-20-R
Citation No. 2139597; 10/12/83
Docket No. WEVA 84-21-R
Citation No. 2271717; 10/12/83
Docket No. WEVA 84-22-R
Citation No. 2139563; 10/18/ff3
Docket No. WEVA 84-23-R
Citation No. 2139600; 10/18/83
Docket No. WEVA 84-24-R
Citation No. 2139561; 10/18/83
Docket No. WEVA 84-25-R
Citation No. 2271718; 10/19/83

2639

Docket No. WEVA 84-26-R
Citation No. 2271719; 10/19/83
Docket No. WEVA 84-27-R
Citation No. 2271720; 10/19/83
Docket No. WEVA 84-28-R
Citation No. 2271722; 10/19/83
Docket No. WEVA 84-29-R
Citation No. 2271726; 10/20/83
Docket No. WEVA 84-36-R
Citation No. 2139562; 10/18/83
Docket No. WEVA 84-37-R
Citation No. 2271724; 10/20/83
Monclo Prep. Plant
Boone No. 2 Prep. Plant
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of ,Labor, Philadelphia,
Pennsylvania, for Petitioner/Respondent;
Laura E. Beverage, Esq., Jackson, Kelly, Holt
and O'Farrell, Charleston, West Virginia, for
Respondent/Contestant.

Before:

Judge Broderick

STATEMENT OF THE CASE
The mine operator (Zapata) filed proceedings contesting
the validity of citations issued by MSHA. The Secretary has
filed penalty proposals for the violations of mandatory
standards alleged in the contested citations. The proceedings were consolidated by Order of May 11, 1984, for the
purposes of hearing and decision. With respect to certain
of the violations, the parties submitted prior to the hearing
and at the hearing-, settlement proposals. Pursuant to notice,
the consolidated cases were heard on the merits in Charleston,
West Virginia, on September 18 and 19, 1984. Federal Mine
Inspectors Ernest Thompson and Clinton Lewis testified on
behalf of MSHA. J. Richard Dillon, Monty Boytek, and Hershel
Aylshire testified on behalf of Zapata. The parties waived
their rights to file posthearing briefs. Based on the entire
record, and considering the contentions of the parties, I
make the following decision.

2640

FINDINGS AND CONCLUSIONS APPLICABLE TO ALL CITATIONS
1. At all times pertinent to these proceedings, Zapata
Coal Corporation, also known as Dal-Tex Coal Corporation, was
the owner of mining facilities in Logan County, West Virginia,
known as the Monclo Prep. Plant, also known as Boone No. 2
Prep. Plant.
2. At the time of the alleged violations contested in
these proceedings, the annual production of the subject mine
was 557,122 tons of coal. The operator is therefore of
moderate size.
3.
In the 24-months prior to the alleged violations
contested herein, the operator had a history of 66 violations
of mandatory standards. This is a relatively favorable
history.
4. The imposition of penalties in these proceedings
will not affect the operator's ability to continue in business.
5. All of the violations involved herein were abated
promptly and in good faith.
6. The operator herein is subject to the provisions of
the Federal Mine Safety and Health Act of 1977 in the operation of the subject mine, and I have jurisdiction over the
parties and subject matter of this proceeding.
SETTLEMENT MOTION
The Secretary proposed to settle certain of the alleged
violations contained in the above dockets. Written motions
were filed on July 2, 1984, and August 27, 1984, and were
amended by statements made on the record on September 19,
1984. The following citations were included in the motions:
Docket No. WEVA 84-122
Citation No. 2271720
This citation charged a violation of 30 C.F.R.
77.400(b) because of the absence of a guard on a walkway
under. the conveyor belt. The hazard was deemed minimal and
the operator's negligence moderate. The violation was
originally assessed at $20 and the parties proposed to
settle for $40.
I approved the settlement agreement.
§

2641

Citation No. 2271722
This citation charged a violation of 30 C.F.R. § 77.204
because handrails and toeboards were inadequate or were
missing under the rotary dump, on the bottom floor transfer
building, and around the second floor of the shaker. The
hazard was deemed moderate as was the operator's negligence.
The violation was originally assessed at $136, and the
parties proposed to settle for $136.
I approved the
settlement agreement.
Docket No. WEVA 84-123
Citation No. 2139561
This citation charged a violation of 30 C.F.R. § 77.204
because of openings caused by deteriorated metal on the
first floor of the preparation plant. The hazard was deemed
moderate as was the operator's negligence. The violation
was originally assessed at $105 and the parties proposed to
settle for $105.
I approved the settlement agreement.
Citation No. 2139562
This citation charged a violation of 30 C.F.R.
77.1607(c) because the unguarqed walkway along the belt
conveyor was not equipped with emergency stop devices or
cords. The hazard was deemed unlikely to occur, but the
operator's negligence was deemed moderate. The violation
was originally assessed at $20, and the parties proposed
to settle for $40.
I approved the settlement agreement.
§

Citation No. 2271726
This citation charged a violation of 30 C.F.R. § 77.400
because the equipment guard for the V-belt pulley was
inadequate. The gravity of the hazard was deemed moderate,
but the operator's negligence was deemed low. The violation
was originally assessed at $105, and the parties proposed
to settle for $90.
I approved the settlement agreement.
Docket No. WEVA 84-149
pocket No. 2139587
This citation charged a violation of 30 C.F.R. § 71.805
because a noise survey showed excessive noise in the environment of one miner. The gravity of the violation was deemed
low and the operator's negligence minimal. The violation
was originally assessed at $98 and the parties proposed to
settle for $69.
I approved the settlement agreement.

2642

Citation No. 2139593
This citation charged a violation of 30 C.F.R. § 77.1104
because of an accumulation of combustible material along a
portion of the mine floor.
The condition had recently
occurred, consisted of wet material and was not a serious
hazard. The violation was originally assessed at $20, and
the parties proposed to settle for $40.
I approved the
settlement agreement.
Citation No.

213~563

This citation charged a violation of 30 C.F.R. § 77.207
because of insufficient illumination along a number of
walkways. No miners worked in the area, however, and the
operator's negligence was deemed low. The violation was
originally assessed at $105 and the parties proposed to
settle for $69.
I approved the settlement agreement.
THE CONTESTED CITATIONS
Docket No. WEVA 84-122
Citation No. 2139597
This citation charged a violation of 30 C.F.R. § 77.207
because of inadequate illumination along a walkway which
constituted a secondary escapeway. There were lights on the
primary escapeway, on the landing, and flood lights on the
hill at the stockpile about 50 feet from the secondary
escapeway. The operator's safety superintendent testified
that all of these lights provided illumination to the
secondary escapeway. The citation was written in the daytime, although the inspector testified that he had previously
been in the area at night. The operator's safety superintendent testified that he frequently walked the secondary
escapeway, and in his opinion it was adequately illuminated.
There was debris along the walkway.
'I conclude that the Secretary has not carried his burden
of establishing that a violation occurred. Therefore, the
notice of contest is granted, the citation is VACATED, and
the penalty proposal for this violation is DISMISSED.

Citation No. 2271717
This citation charged a violation of 30 C.F.R. § 77.202
because of an accumulation of float coal dust on the surface
structure of a coal truck dump, on the inside of the frame of
an electric heater and in the electrical control boxes

2643

and switch boxes. Sources of ignition were present in the
electrical connections and in the cable from the pump which
lacked proper bushing. The pump and heaters were not in
operation at the time the citation was issued.
The inspector and the operator's plant superintendent
disagreed as to whether the dust on the facilities described
above was float coal dust. I accept the inspector's testimony on this is~ue and conclude that float dust was present
in the amounts described by the inspector. The amount of
dust was such that it would have taken more than one shift
to accumulate. With an ignition source present, there was
a substantial fire or explosion hazard.
I find that coal
dust in a dangerous amount was permitted to accumulate.
Therefore, the cited condition was a violation of the
standard in 30 C.F.R. § 77.202. It was a significant and
substantial violation, was serious and was caused by the
operator's negligence.
I conclude that $250 is an appropriate penalty for the violation.
Citation No. 213·9600
This citation charged a violation of 30 C.F.R.
77.400(c) because of an inadequate guard at the No. 9 belt
conveyor flight discharge head. The inspector stated that
a miner could reach in behind the guard and catch himself
between the belt and the pulley. There were no miners working at the drive at the time the citation was issued, but
the belt was regularly cleaned and serviced while the belt
was in operation. The guard was only about 48 inches high.
The distance from the top portion of the guard to the pinch
point was 31 to 36 inches. It would have been somewhat
difficult but not impossible for a person to reach the pinch
point from behind the guard. The standard requires that
guards shall extend a distance sufficient to prevent a
person from reaching behind the guard and becoming caught
between the belt and the pulley. The Commission recently
held that this standard "imports the concepts of reasonable
possiblity of contact and injury; including contact stemming
from inadvertent stumbling or falling, momentary inattention,
or ordinary human carelessness." Secretary v. Thompson
Brothers, 5 FMSHRC·
(September 24, 1984), slip. op. page 4.
I conclude that a violation of the standard was established.
Howev~r, I further conclude that an injury was unlikely
because of the location of the pinch point. The violation
was not significant and substantial and was not serious. The
condition was or should have been obvious to the operator and
therefore, resulted from the operator's negligence.
I conclude that an appropriate penalty for the violation is $75.
§

2644

Citation No. 2271718
This citation charged a violation of 30 C.F.R.
77.400(a) because of inadequate mechanical equipment
guards at the rotary breaker and at 4 V-belts at the pulley
drive shaker. There was an opening about 18 inches wide in
the screen guard at the rotary breaker which was from 6 to
7 feet high.
The pinch point was about 26 inches in from
the guard. The guards on the 4 V-belts did not come down
to the end of the motor, leaving the belts and pinch points
exposed. The area of exposure was about 4 inches high and
4 inches wide. The pinch point was 18 to 20 inches in from
the guard, and about 5-1/2 feet high.
The area was cleaned
weekly and serviced occasionally.
§

I conclude that a violation of the standard (requiring
· that exposed moving machinery parts which may be contacted
by persons and may cause injury to persons shall be guarded)
was shown. See discussion of prior citation, above. I
conclude that the violation was reasonably likely to cause
serious injury; that therefore, it was significant and substantial. The conditions should have been known to the
operator. I conclude that an appropriate penalty for the
violation is $150.
Docket No. WEVA 84-·123
Citation No. 2139599
This citation charged a violation of 30 C.F.R.
77.1608(b) because of dumping of coal approximately 30 feet
beyond the edge of a high wall and directly above a surge
bin; and also because an end loader was trammed above the
surge bin to scatter coal dumped by trucks. The standard
requires that where the ground at a dumping point may fail
to support the weight of a loaded dump truck, trucks shall
be dumped a safe distance back from the edge of the bank.
The evidence is conflicting as to whether the ground was
such that it could support the weight of a loaded truck.
There was considerable dispute as to the effect (and location) of the surge bin.
I accept the judgment of the
inspectors that the ground at the dumping point in question
might fail to support the weight of a loaded truck.
I
furth~r accept their testimony as to the evidence that trucks
had backed on to such ground. The trucks belonged to and
were operated by independent trucking companies. But the

2645

operator here controlled the dumping area, and was responsible for controlling the dumping of the coal. I conclude
that the operator was properly cited for violations of the
standard committed by the truckers. Therefore, I conclude
that a violation was established. I further conclude, as
the Secretary concedes, that the end loader's travel on to
the coal pile was not a violation of the standard cited.
I further conclude that the trucks did not go out over the
surge bin, although they did go beyond the edge of the
highwall. Respondent did not take adequate steps to prevent this occurrence and was therefore negligent in permitting the violation.
I conclude that the violation was
reasonably likely to result in serious injury. It was
therefore properly cited as significant and substantial. I
conclude that an appropriate penalty for the violation is
$150.
Citation No. 2271719
This citation charged a violation of 30 C.F.R. § 77.202
because of float coal dust accumulations to a depth of
4 inches on the frame and structure of the speed reducer in
the Transfer Building. The speed reducer contains an
electrical motor and belt drive.
The motor was energized
and the belt was in operation at the time the citation was
issued.
The amount of dust was such that it would have
taken more than one shift to accumulate. The electric motor
and speed reducer do not generally get hot but run warm while
in operation. The building was enclosed on three sides and
open on the fourth.
The only miners normally entering the
area would be those assigned to grease the bearings and'
clean up the area.
I conclude that the accumulation of
float coal dust was a violation of the standard cited. I
further conclude that since ignition sources were present, it
was reasonably likely to contribute to a fire or explosion
hazard which could result in serious injury to miners, and
that it resulted from the operator's negligence.
I conclude
that an appropriate penalty for the violation is $135.
Citation No. 2271724
This citation charged a violation of 30 C.F.R. § 77.512
because of covers not being properly secured on three
breaker boxes serving the centrifugal dryers. The boxes
have 480 volts of power. The power was on and the tipple
in operation. The only people authorized to enter the area
are certified electricians and foremen. A danger sign was
present on the door warning of 480 volts of electricity. The
screw locks were loose and the doors open about 2 to 3 inches.
I conclude that a violation was established. The condition

2646

should have been known to the operator and corrected before
the citation was issued. The exposure to hazard was minimal
and the likelihood of injury slight. The violation was not
significant and substantial. I conclude that an appropriate
penalty for the violation is $75.
ORDER
1.

The following contested citation is ORDERED VACATED:
Citation No. 2139597 issued October 12, 1983

2. The following contested citations are ORDERED
AFFIRMED, but MODIFIED to remove the significant and
substantial designation:
Citation No. 2139600 issued October 18, 1983
Citation No. 2271724 issued October 20, 1983
3.
issued:

The following contested citations are AFFIRMED as
Citation No.
Citation No.
Citation No.
Citation No.

2271717
2271718
2139599
2271719

issued October 12,
issued October 19,
issued October 17,
issued October 19,

1983
1983
1983
1983

4. As part of the settlement, the operator seeks to
have withdrawn its notices of contest with respect to the
following citations and the contests are ORDERED WITHDRAWN
and the proceedings DISMISSED:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2271720
2271722
2139561
2139562
2271726
2139587
2139563
2139593

issued October 19, 1983
issued October 19, 1983
issued October 18, 1983
issued October 18, 1983
issued October 20, 1983
issued October 6, 1983
issued October 18, 1983
issued October 11, 1983

5. Within 30 days of the date of this decision the
operator is ORDERED to pay the following civil penalties
for v~olations of mandatory standards:
CITATION

PENALTY

2271720
2271722
2139561
2139562
2271726

$

2647

40
136
105
40
90

2139587
2139593
2139563
2139597
2271717
2139600
2271718
2139599
2271719
2271724
Total

69
40
69
0
250
75
150
150
135
75
$1,424

j

~f A/3vvdu.~6i
James A. Broderick
Administrative Law Judge

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Laura E. Beverage, Esq., Jackson, Kelly, Holt and O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
/fb

2648

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
I. B. ACTON
GRADY ADERHOLT
FREEi'-iAN BUTLER
JAMES L. CAMPBELL
W. D. FRANKLIN
BILLY R. GLOVER
TERRY PEOPLES
WILLIAM REID
CHARLES W. RICKER
TERRY SHUBERT
THEODORE TAYLOR
MARVIN WISE

.191984

DISCRIMINATION PROCEEDINGS

Docket No. SE
SE
SE
SE
SE
SE
SE
SE
SE
SE
SE
SE

84-31-D
84-32-D
84-33-D
84-34-D
84-36-D
84-37-D
84-39-D
84-40-D
84-41-D
84-42-D
84-43-D
84-44-D

MSHl'i Case No. BARB CD 83-18
Nebo Mine
Docket No. SE 84-46-D

ROBERT BURLESON
Complainants

MSHA Case No. BARB CD 83-28
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor
v.

No. 7 Mine

JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

Frederick W. Moncrief, Esq., Office of the ~
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Complainants;
Mary Lu Jordan, Esq., Washington, D.C., for
Intervenor;
David M. Smith, Esq., Maynard, Cooper, Frierson
& Gale, P.C., Birmingham, Alabama, and Robert W.
Pollard, Esq., Jim Walter Resources, Inc.,
Birmingham, Alabama, for Respondent.

Before:

Judge Melick

2649

A.

Final· Disposition of Discrimination Proceedings:

By decision dated October 15, 1984, any claim for interest
and attorney's fees in these cases was to be submitted to the
undersigned within 20 days thereof. No such claim has been
filed and no extension of time requested. Accordingly the
Complainants are awarded only the training expenses and
comparable wages set forth in that decision. Jim Walter
Resources, Inc., is hereby ordered to pay the noted amounts
to the following miners within 10 days of the date of this
decision:

B.

Name of .Miner

Total Due

I. B. Acton
Grady Aderholt
R. Burleson
F. Butler
J. L. Campbell
W. D. Franklin
R. B. Glover
T. Peoples
W. C. Reid
C. W. Ricker
T. Shubert
T. Taylor
M. Wise

$523.48
485.54
528.74
418.40
493.88
437.54
429.86
436.54
425.86
500.00
420.14
439.74
404.86

Final Disposition of Civil Penalty Proceedings:

In accordance with the decision in these cases dated
October 15, 1984, Jim Walter Resources, Inc., is hereby
ordered to pay within 10 days of the dat of this decision
a civil penalty of $650 ($50 in each of
e captioned cases).

l
I

Judge

Frederick W. Moncrief, Esq., Offi e of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified
Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
St., N.W., Washington, D.C. 20005
(Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C.,
1200 Watts Bldg., Birmingham, AL 35202
(Certified Mail)
Robert W. Pol-lard, Esq., Jim Walter Resources, Inc., P.O. Box C-79,
Birmingham, AL 35283
(Certified Mail)
/ejp

2650

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

PEABODY COAL COMPANY,
Contestant

CONTEST PROCEEDINGS

v.
:
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

Docket No. KENT 84-97-R
Citation No. 2338145; 1/16/84

:

Docket No. KENT 84-98-R
Citation No. 2338146; 1/16/84

:
:

Docket No. KENT 84-99-R
Citation No. 2338147; 1/16/84

..

Docket No. KENT 84-100-R
Citation No. 2338148; 1/20/84
Docket No. KENT 84-101-R
Citation No. 2338151; 1/20/84

:
:

Docket No. KENT 84-102-R
Citation No. 2338153; 1/20/84

:
:

Docket No. KENT 84-104-R
Citation No. 2338156; 1/23/84
Docket No. KENT 84-105-R
Citation No. 2338157; 1/23/84
Docket No. KENT 84-106-R
Citation No. 2338158; 1/25/84

.
Docket No. KENT 84-107-R
Citation No. 2338703; 1/30/84
..
..

Docket No. KENT 84-117-R
Citation No. 2338710; 2/03/84

:

Docket No. KENT 84-118-R
Order No. 2338111; 2/03/84

:

Docket No. KENT 84-119-R
Order No. 2338712; 2/03/84

.
.
. Camp No. 2 Underground Mine
2651

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 83-133
A.C. No. 15-02705-03537

v.
Docket No. KENT 84-149
A.C. No. 15-02705-03539

PEABODY COAL COMPANY,
Respondent

Docket No. KENT 84-223
A.C. No. 15-02705-03544
Camp No. 2 Mine
DECISION
Appearances:

Michael O. McKown, Esq., St. Louis, Missouri,
for Contestant/Respondent;
Deborah A. Persico, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Respondent/Petitioner.

Before:

Judge Melick

These consolidated cases are before me pursuant to sections 105(a) and 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~., the "Act," to
contest citations and withdrawal orders issued to the Peabody Coal Company (Peabody) and for review of civil penalties proposed by the Mine Safety and Health Administration
CMSHA), for the violations alleged therein. At hearing,
Peabody admitted the existence of the violations and the
special unwarrantable failure findings (as alleged in the
two orders before me) and challenged only the "significant
and substantial" findings made by MSHA.
In order to establish that a violation of a mandatory
safety standard is "significant and substantial" the Secretary must prove:
Cl) 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 violations; (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. Secretary v. Mathies Coal Company, 6 FMSHRC
1 (198"4).
With the exception of Citation No. 2338155 which had
been the subject of a settlement and final disposition prior
to the filing by the Secretary of the civil penalty proceedings now before me (Docket No. KENT 84-149), all of the citations and orders at issue involve a violation of the permissibility requirements set forth in the standard at 30 C.F.R.

2652

§ 75.503.

The admitted violations all concern openings in
excess of .004 of an inch between plain flange cover plates
and electrical enclosures on electrical face equipment taken
or used inby the last open crosscut. Several of the citations/orders allege, in addition, other electrical hazards
charging independent violations of the cited standard. The
corresponding citations and orders are noted in the discussion that follows.

In determining whether the violations are "significant
and substantial" several factors are relevant to all of the
alleged violations.
In this regard it is not disputed that
each of the cited pieces of equipment was being used, or
would have been used in the near future, inby the last open
crosscut and in close proximity to working faces.
In
addition, within the cited electrical compartments sparking
and arcing were frequent and sufficient to ignite a methane
concentration in the atmosphere of between 3 percent and 15
percent.
Further, that during the time the violations were
cited ventilation in excess of that required by the operator's ventilation plan and an amount deemed adequate by MSHA
was ventilating relevant face areas; that there had been
adequate rock dusting in relevant areas; that in many of the
units in which the citations were issued no methane was detected and in none of the units was more than .8 percent
methane found; and that methane checks were made at least
every 20 minutes.
According to MSHA Inspector George Dupree, the violations were "significant and substantial" because of the danger of fire and explosion which could be triggered by concentrations of methane between 3 percent and 15 percent entering electrical compartments in which sparking and arcing
occurs. While conceding that there had been little or no
evidence of methane and recognizing the apparent adequacy of
the ventilation, rock dusting and methane testing at the
time of these violations, Dupree nevertheless noted that
methane in explosive concentrations can be liberated at any
time and indeed at the mine cited in this case, he observed
significant fluctuations in methane liberation. The exhibits in evidence depicting variations in methane liberation
at the Camp No. 2 Mine support the inspector's testimony in
this regard.
In further support of his estimation of the
hazacd presented, Dupree cited MSHA records of fatal methane
exploslons in mines with no history of methane •.
In addition, in light of the large number of similar
violations and, indeed, of the continuing violations after
warnings from the MSHA inspector, it is reasonable to infer
that, in the normal course of events, the cited conditions
would not have been corrected. Within this framework of

2653

evidence, it is apparent that the violations are indeed "significant and substantial." See Secretary v. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866 {1984) affirming similar "significant and substantial" violations of the permissibility
standards. The violations were in any event also "significant and substantial" based on the uncontested evidence that
electrical shock and electrocution were reasonably likely
from water seepage into the cited electrical compartments
and the resulting short circuiting.
While there is also evidence that some of the equipment
was furnished with methane monitors which, if properly functioning, will trigger a warning light at a 1 percent concentration of methane and cut off power to the equipment upon
the presence of 2 percent methane, it is not disputed that
these monitors can and do malfunction. Explosive concentrations of methane could also reach the exposed electrical
compartments before reaching the methane monitor. Under the
circumstances, I do not find the existence of methane monitors to be sufficient to negate the "significant and substantial" findings made herein.
According to Inspector Dupree, the large number of permissibility violations at the Camp No. 2 Mine was quite unusual and reflected a totally inadequate maintenance program.
Indeed, Dupree found that 70 percent of the violations were
the result of loose bolts on the cover plates. Moreover,
even after several perm~ssibility violations were cited on
the first day of his inspection, thereby giving notice to
the mine operator of this deficiency, the violations nevertheless continued.
I agree with Dupree's evaluation and I
conclude that these factors warrant a finding of significant
negligence.
In addition, with respect to Citation Nos.
2338143, 2338144, 2338145, 2338147, 2338151, 2338153,
2338156, 2338157, 2338703, and 2338710, and Order No.
2338711, the undisputed evidence is that the bolts and lock
washers holding the cover plates onto the electrical compartments were loose, protruding, and clearly visible.
It could
reasonably be inferred from these obvious conditions that
the cover plates were also loose, unsafe, and in violation
of the cited standard.
Accordingly, for this additional
reason, I find that the noted violations were the result of
significant negligence.
In addition, with respect to Citation No. 2338146, it
is undisputed that the cover plate over the electrical compartment had rusted to such an extent that the cover had to
be replaced.
It is further undisputed that the amount of
rust observed could have accumulated only after a lapse of
3 or 4 months.
Accordingly, the deteriorated condition
should have been detected during the weekly electrical inspections. Therefore it may reasonably be inferred that

2654

those electrical inspections were not being adequately performed.
The violation was thus the result of significant
negligence.
Finally, with respect to Order No. 2338712, it is undisputed that, in addition to the cited loose cover plate, the
conduit and cable had been torn out of the resistor panel,
thereby creating an independent hazard. The condition was
readily visible, since the light was inoperative, and was
therefore the result of gross negligence.
Further negligence is attributable to the operator in
those cases cited after January 16, 1984, since the mine
operator was forewarned on that date of the recurrent problem of these permissibility violations.
It is apparent that
even after these warnings management took no effective corrective action. Accordingly, I am assessing a greater penalty for the corresponding citations amd orders.
In determining the amount of penalties to be assessed
in these cases, I have also considered that the operator is
large in size and has a substantial history of violations
including a number of violations of the standard cited herein. The violations were all abated in a timely and good
faith manner.
ORDER
Citation No. 2338155 having been previously withdrawn
before the filing of the instant civil penalty proceeding is
hereby severed from these cases. The contest proceedings,
Dockets No. KENT 84-97-R, KENT 84-98-R, KENT 84-99-R, KENT
84-100-R, KENT 84-101-R, KENT 84-102-R, KENT 84-104-R, KENT
84-105-R, KENT 84-106-R, KENT 84-107-R, KENT 84-117-R, KENT
84-118-R, and KENT 84-119-R are dismissed.
The Peabody Coal Company is ordered to pay the following
civil penalties within 30 days of the date of this decision:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2338142
2338143
2338144
2338145
2338146
2338147
2338151
2338153
2338156
2338157
2338158

2655

$ 100
100
100
500
500
300
300
300
300
300
300

Citation No. 2338703
Citation No. 2338710
Order No. 2338711
Order No. 2338712

300
300
400
750
Total

$4,850

f Administrative Law Judge

Distribution:
Michael O. McKown, Esq., Peabody Coal Company, P.O. Box 373,
St. Louis, MO 63166
(Certified Mail)
Deborah A. Persico, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
/nw

2656

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

CIVIL PENALTY PROCEEDINGS

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

Docket No: SE 83-29
A/O No:
40-00524-03508
No. 2l Mine

v.
GRUNDY MINING COMPANY, INC.,
Respondent
and
NOTICES OF CONTEST

GRUNDY MINING COMPANY, INC.
Contestant

Docket No: SE 82-36-R
Citation No: 757821; 2/24/82
Docket No: SE 82-37-R
Citation No: 757822;
2/24/82

v.

Docket No: SE 82-38-R
Citation No: 757823;
2/24/82
Docket No: SE 82-39-R
Citation No: 757824; 2/24/82
Docket No: SE 82-40-R
Citation No: 757825; 2/24/82

SECRETARY OF LABOR, et al
Respondent

DECISION APPROVING SETTLEMENT .
Before:

Judge Moore

The proposed assessment issued by the assessment off ice
in the above-captioned civil penalty proceedings is $30,272.00
and the parties are seeking approval to settle for $27,000.
MSHA has submitted with its moving papers its position
with regard to the statutory criteria, and after examining
those papers I find no reason to challenge MSHA's position.
I therefore accept the reasons given by MSHA for

2657

agreeing to a settlement and incorporate them herein by
reference.
The settlement motion is GRANTED and respondent is
ORDERED to pay to MSHA, within 30 days, a civil penalty of
$27,000.

~C~'

Charles c. Moore, Jr.
Administrative Law Judge
Distribution:

Edward H. Fitch, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Robert I. Cusick, Jr. Esq,m
Citizens Plaza, Louisville,

Wyatt, Tarrant and Combs,
KY 40202 (Certified Mail)

Thomas S. Kale, Esq., Spears, Moore, Rebman and Williams,
Blue Cross Building, 8th Floor, Chattanooga, TN 37402
(Certified Mail)
Paul D. Kelly~ Jr. Esq.,
and Graham,
P.O. Box 488,
Mail)

Leiderman, Cameron Kelly,
Jasper, TN 37347 (Certified

~elly,

/db

2658

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINiSTRATIVE LAW JUDGES

,. . , \I 2
I'i, u
.; . o V::!<::5'11t
!'"'•

333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

, ..

'•

CIVIL PENALTY PROCEEDINGS

v.

MARKEY MINES, INCORPORATED,
Respondent

:

and

Docket No. WEST 80-376-M
A.C. No. 42-00784-05003
Docket No. WEST 80-416-M
A.C. No. 42-00784-05004
Docket No. WEST 80-487-M
A.C. No. 42-00784-05005
Docket No. WEST 81-76-M
A.C. No. 42-00784-05006
Docket No. WEST 82-182-M
A.C. No. 42-00784-05007
Markey Mines

CALVIN BLACK ENTERPRISES,
Respondent

Docket No. WEST 81-392-M
A.C. No. 42-00550-05002

.

Blue Lizzard Mine

DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Calvin Black, President, Markey Mines, Inc.,
Blanding, Utah, pro se.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondents with violating various
safety regulations promulgated under the Federal Mine Safety and
Health Administration Act, 30 U.S.C. § 801 et seg., (the "Act").
After notice to the parties, a hearing on the merits was
held on August 21, 1984, in Monticello, Utah.
The Secretary did not file a post-trial brief. Respondent,
Markey Mines, filed a brief relating to certain threshold issues
and was granted an opportunity to file a further brief on the
merits of the alleged violations (Order, September 17, 1984). No
further brief was filed.

2659

Issues
Two threshold issues are presented: they concern whether the
citations should be vacated because they were issued to the incorrect operator. Further, an issue concerns whether respondent
is bound by the acts of its independent contractor. An additional issue is whether respondent is bound by certain evidence
offered by a deposition.
Secondary issues are whether respondent violated the
regulations.
If a violation occurred, what penalty is
appropriate.
Stipulation
In assessing any penalties the parties agreed that Markey
Mines is a small mine; further, it has no adverse history for the
24 months prior to the issuance of the citations in these cases.
(Tr. 145, 146).
WEST 80-376-M
Citation 336689
This citation alleges a violation of Title 30, Code of
Federal Regulations, Section 57.18-6 which provides as follows:
57.18-6 Mandatory. New employees shall be indoctrinated in safety rules and safe work procedures.
Summary of the Evidence
MSHA's evidence: Ronald L. Beason, an MSHA inspector, issued
this citation because two survey helpers, Boyd Donaldson, age 28,
and Scott Sanders, age 19, were not trained in safety rules (Tr.
14-17).
The miners, employees of Sanders Exploration Company, were
surveying old workings. There were five employees of Markey
Mines observed in the drift where the two surveyors were located
(Tr. 17, 18).
The citation, an alleged S&S violation, was served on
Wendell Jones and Hanson Bayless, Markey representatives who were
present. The citation was issued because the two surveyors were
untrained in the use of self-rescue equipment. Jones claimed the
men were employees of Sanders Exploration Company and, therefore,
respondent had no obligation to train them.
In the inspector's
opinion the men should also have been instructed in ground
control, radiation, dust, evacuation, electricity and bulkheads.
The surveyors responded to the orders of Jones and Bayless (Tr.
18-27, 40).
Inspector Beason ordered the surveyors to leave the
mine. He further instructed the men in the use of self-rescue
equipment. The company was directed to complete their training
within three days (Tr. 153-156).

2660

Petitioner's evidence includes the decision of Commission
Judge Virgil Vail in Secretary v. Calvin Black Enterprises, 5
FMSHRC 1440 ·(Tr. 9, 10; Exhibit P-1).
Calvin Black, Hanson Bayless, and Wendell Jones testified
for respondent.
Calvin Black indicated that Calvin Black Enterprises
(hereafter "CBE") is a sole proprietorship owned by himself.
CBE owns the capital stock in Markey Mines and the lease on the
minerals rights. CBE contracted with Markey Mines to operate the
mine. Markey Mines owns the mining equipment.
CBE also contracted with Sanders Exploration to survey the
mine. Sanders had general authority to enter the mine. But, in
fact, on the day of this inspection, Donaldson and Sanders were
underground without respondent's permission. The company later
precluded such action by keeping its gates locked (Tr. 70, 74,
80).
Hanson.Bayless and Wendell Jones both indicated that when
they arrived at the mine at 8:00 a.m. on the day of the inspection the surveyors had already gone underground. In
addition, Bayless, in his 30 years' experience, had never seen
the need for self-rescue equipment in this mine. This condition
may have been a hazard in some mines but not in the Markey Mines
(Tr. 99-100, 123-125).
Wendell Jones claimed the inspector's instructions to the
surveyors concerning self-rescue equipment took only 15 minutes.
He further denied that the inspector directed him to give
additional training to Donaldson and Sanders (Tr. 157).
Discussion
Respondent raises two threshold issues.
Initially, it is
asserted that the cases are fatally defective because the
citations name the operator as "Calvin Black Enterprises." But
the proposal for penalty was filed in five of the cases against
"Markey Mines, Incorporated" namely, in WEST 80-376~M, WEST
80-416-M, WEST 80-487-M, WEST 81-76-M and WEST 82-182-M.
The second contention is that the two surveyors were
employees of Sanders Exploration Company, an independent contractor. Therefore, respondent urges it cannot be held liable
for the acts of an independent contractor.
Concerning the initial issue, it is correct that the
citations in the above docketed cases show the operator as
"Calvin Black Enterprises." The citations further identify the
mine site as the "Markey Mines."

2661

I find the fact~ concerning th~ interlocking ownership of
CBE and Markey Mines to be as related by Mr. Black in his
testimony. · In short, Markey Mines was the operator. Although
the citations were issued showing CBE as the operator, the same
citations also identified the site as Markey Mines. 'CBE and
Markey were fully apprised of the situation and the record fails
to disclose that CBE or Markey were prejudiced. Section 104(a)
of the Act, now 30 U.S.C. § 814(a), requires the Secretary to
issue his citation to the operator. But on the facts here, I
conclude that whatever errors occurred in the issuance of the
citations were cured by the Proposals for Penalty filed in these
cases. The proposals filed named Markey Mines as respondent. In
its answer Markey admits it is the operator, admits that its
products affect commerce, and admits the issuance of the
citations.
In short, the Secretary amended the citations when he
filed his proposals to assess penalties.
For the foregoing reasons I deny the motion to dismiss.
The second threshold issue concerns the status of Sanders
Exploration Company as an independent contractor. It is asserted
that its employees (Donaldson and Sanders) would likewise be
independent contractors. Hence, it is argued that the production
operator would not be responsible for the training of such
individuals.
The latest Commission decision involving the independent
contractor doctrine was issued on August 29, 1984 in Cathedral
Bluffs Shale Oil Company, 8 FMSHRC 1871. In the decision the
Commission considered the effect of the Secretary's formally
adopted policy regarding the issuance of citations to an operator
for violations of the Act committed by an independent contractor.
The citation in the instant case was issued before the
Secretary's policy took effect. But, the production operator
(Markey Mines), would be liable under the law applicable before
the adoption of the Secretary's policy and it would also be
liable under the Secretary's later policy. The liability arises
from the fact that a part of the determination of liability includes an evaluation of whether the production operator's miners
were exposed to the hazard created by the independent contractor.
Old Ben Coal Co., 1 FMSHRC 1480 aff'd., No. 79-2367 (D.C. Cir.
January 6, 1981); Cyprus Industrial Minerals Company, 3 FMSHRC 1
(January 1981), aff'd. 664 F.2d 1116 (9th Cir. 1981).
The evidence here establishes that when the two Sanders
employees were underground at least five employees of Markey
Mines were in the drift where the surveyors were located (Tr. 17,
18).
The five Markey employees were thus exposed to any hazard
the new inexperienced employees might generate due to their lack
of training in safety and safe work procedures.

2662

Accordingly, the independent contractor
vail in this factual setting.

d-~fense

cannot pre~

During the trial the Secretary offered the decision of Judge
Vail in the case of Secretary v. Calvin Black Enterprises, cited
supra. The Secretary offered the case to invoke the doctrine of
res judicata. It is claimed that respondent is bound by Judge
Vail's decision since that case involved Sanders Exploration
Company, self-rescue equipment, and the independent contractor
issue.
Jn support of his position the Secretary has cited United
States v. Stauffer Chemical Company, 104 s. Ct. 575 (1984)(Tr. 8,
9).
I disagree with the Secretary. The cited case is not
controlling because the doctrine of defensive collateral estoppel
does not apply unless the issue was litigated in another case involving "virtually identical facts." It is not shown that the
facts in the instant case are identical with Judge Vail's case.
I, accordingly, reject the Secretary's motion to invoke the
doctrine.
As to the violative condition itself the evidence
establishes that two men, who were only employees for two days,
were untrained in many areas of safety. Violations of safety
rules and procedures by these workers could endanger themselves
and the five Markey Mine employees on the site. It is the
operator's duty to control the independent contractor's workers
and their activities, as they generally affect the respondent's
employees in the mine.
Respondent further claims that the Sanders employees went
underground before the operator's supervisors arrived on the job
site that morning and that they did so without permission. It is
argued they were trespassers.
I reject this contention. Sanders Exploration, according to
Mr. Black, had general authority to enter the mine. With such
general authority they did not have to secure permission to enter
on a daily basis.
The citation should be affirmed.
Citation 336810
§

This citation alleges a violation of 30 C.F.R.
57.ll-51Cb), which provides:
57.11-51 Mandatory. Escape routes shall be:
Cb) Marked with conspicuous and easily read direction
signs that clearly indicate the ways of escape.
Summary of the Evidence

MSHA Inspector Ronald Beason asked Wendell Jones to go into
the return air haulageway. Jones identified this area as his

2663

escape route. The inspection p2rty became lost and backtracked
four times {Tr. 27-29).
The hazard, caused by a lack of signs, is that miners could
be trapped because they would not have time to backtrack and
search for an escape route during an evacuation (Tr. 29-30).
Respondent's evidence through witnesses Black, Bayless and
Jones shows the new haulageway was completed in the week before
the inspection.
In addition, the company was in the process of
installing large fans, airlines, and was cleaning up. At the
time of the inspection there were no signs up. The old drift was
without signs and it had never had any. The inspectors had never
told the company that signs were necessary (Tr. 102-104, 123-135,
179).
Witness Wendell Jones indicated he did not get lost in the
escapeway. Actually, he was looking for a jeep but he was
neutral as to whether or not the inspection party found it (Tr.
129, 130).
MSHA's rebuttal evidence indicated that Calvin Black
Enterprises was issued a notice under MESA (MSHA's predecessor)
for failure to have a second escapeway on September 11, 1974.
The condition was abated in April, 1976 (Tr. 148, 149; Exhibit
P-2).
Bayless testified that MESA approved a refuge area as a
second escapeway. Everyone who worked at the Markey Mine had
been instructed where the area was located. The mine had five
miners and a superintendent (Tr. 102-104, 123-135, 179).
Discussion
MSHA's evidence establishes the escape route was not marked
in any fashion to indicate it was an escape route. Respondent's
evidence confirms the violation.
The evidence is conflicting as to whether the escapeway was
completed within the week before the inspection or in April,
1976. I credit respondent's evidence that the parallel haulageway was completed within a week before the inspection. The
citation should be affirmed on the uncontroverted evidence that
the escapeway was unsigned. But the short time since the opening
relates to respondent's negligence, an issue to be considered in
connection with the assessment of a penalty.
WEST 80-416-M
Citation 336866
This citation alleges a violation of 30 C.F.R. § 57.12-20,
which provides:
57.12-20 Mandatory. Dry wooden platforms, insulating
mats, or other electrically nonconductive material

2664

shall b~ J:ept in place at all switchboards and powercontrol switches where shock hazards exist. However,
metal plates on which a person normally would stand
and which are kept at the same potential as the grounded,
metal, non-current-carrying parts of the power switches
to be operated may be used.
Summary of the Evidence
Federal Mine Inspector Roy Maki, a person trained in the
hazards of electricity, issued this citation (Tr. 160-162).
He wrote the citation at the entrance to a flank drift in a
new development. A switch box was not grounded. Further, there
was no insulating material for protection. The switch box
controlled the fan, which was running. The fan provided air to
the drift (Tr. 162-166).
The area around the 440-volt fan was dry. Anyone activating
the fan would be exposed to the hazard of being injured if the
ground fault system failed.
In addition, a fire would be
possible if a bearing on the fan burned out (Tr. 163-164, 169).
Inspector Maki had previously discussed this fan with
Wendell Jones. At that time he noticed it lacked a ground. A
worker could be burned or killed by this hazard. Inspector Maki
issued this citation as an S&S violation. He still considered it
to be such at the time of the trial (Tr. 163-168).
A dry wood platform, such as the standard requires, prevents
a person from being shocked. Rubber boots, such as those used by
miners, are also a good insulator. If a miner was standing on
dry rock, or sand, the electrical charge would not go any further
to ground.
However, if a miner's boots were wet or if the miner
was standing on a dry board, an electrical charge would go to
ground (Tr. 162, 169, 170).
If a mat had been present and there had been a ground, n9
citation would have been issued (Tr. 172, 173).
Witness Bayless, testifying for respondent, indicated that
no one had ever been injured or shocked from turning on this fan.
There is wet drilling at the face but Bayless had never seen a
miner, who might have been wet, turn on the blower. The blower
was equipped with fuses (Tr. 189-192).
Discussion
The regulation requires that the fan and switch have a frame
ground. There was no such ground here and the inspector wrote
the citation to that effect (Tr. 162). The dry wooden platform
and the requirements for an insulating mat would be in lieu of a
ground (Tr. 162).

2665

The factual situation establishes a violation of the
regulation.
Respondent's evidence does not present a defense.
citation should be affirmed.

The

WEST 80-487-M
Citation 337161
This citation alleges a violation of 30 C.F.R. § 57.3-22,
which provides:
57.3-22 Mandatory. Miners shall examine and test
the back, face, and rib of their working places at
the beginning of each shift and frequently thereafter.
Supervisors shall examine the ground conditions during
daily visits to insure that proper testing and ground
control practices are being followed.
Loose ground
shall be taken down or adequately supported before
any other work is done. Ground conditions along
haulageways and travelways shall be examined periodically and scaled or supported as necessary.
Summary of the Evidence
Larry Day, an MSHA inspector, has extensive experience
concerning loose ground (Tr. 193-195). He issued this citation
because there was a loose slab hanging onto a rib in a travelway.
The slab was on the side of a pillar. Miners were walking by the
slab and vehicles were hauling muck out of the pillar area (Tr.
195).
The drift was 10 foot high and 15 to 20 feet wide. The slab
was 9 feet high and 15 feet long. The ground was very heavy and
there was blasting in the area (Tr. 196)0 Pillars in the area
were cracked and many were broken up; there were signs of stress
on the roof. This particular slab had a four inch gap 24 inches
long along the top and on both sides. The only place where the
slab was holding was along its bottom portion (Tr. 196). The
slab had come away from the wall at least four inches at the
widest place (Tro 197).
In the inspector's view the slab, which had moved, could
either slide down the pillar and tip over or it could tip over
and cover the drift (Tr. 197).
From the size of this rock a miner could be disabled or
killed (Tr. 197). Falling rock is the primary cause of
fatalities in underground mines.
Day agreed that Wendell Jones had told him that the slab
could not tip over. As they watched, the slab did not slide
towards the haulageway.
It was resting on its base.

2666

Respondent's witneEs hendell Jo·1~s, ~ith over 30 years'
experience in mining, testified that this particular slab was
already loose and resting on the sill (Tr. 203). It would not
have come loose from this position because it would have to slide
5 or 10 feet all at once (Tr. 204).
Jones intended to take down the slab but under the
circumstances here no one could be injured. It would not tip
over because there were 3 to 4 bars holding it CTr. 201).
After the citation was issued Jones shot the slab with a
couple of sticks of powder (Tr. 202).
Discussion
I credit MSHA's evidence on this citation. Inspector Day
describes the condition of a very large loose slab. The
inspector correctly ordered the removal of the slab since it was
in close proximity to the miners who were working nearby.
Respondent's evidence is not persuasive. Even though the
slab was resting on a sill, its stability was suspect. It could
be affected by the ground behind it, by the blasting, or by the
work being carried on in close proximity.
I, accordingly, reject
respondent's premise that the condition presented no hazard. Cf.
Homestake Mining Company, 4 FMSHRC 146, 150 (1982).
The citation should be affirmed.
WEST 81-76-M
Citations 576708, 576709, 576710
A portion of MSHA's proof of tne alleged violations in this
case arises from the deposition of George Rendon taken June 30,
1983 in Salt Lake City, Utah (Exhibit P-3).
Respondent strenuously objected to the use of the deposition
of George Rendon on the grounds that Francis J. Nielson, Esq.,
was not authorized to represent respondent at the deposition.
Accordingly, respondent asserts the deposition had no evidentiary
value.
The judge admitted the deposition of witness Rendon and
overruled respondent's objections (Tr. 207-223). At this point
it is necessary to review the relevant factors concerning the
deposition.
As an initial matter I note that Francis J. Nielsen, Esq.,
appears as attorney of record for respondent in WEST 80-376-M,
WEST 80-416-M, WEST 80-487-M, and WEST 81-76-M (the instant case).
Mr. Nielsen has never sought to withdraw.

2667

The deposition of witness George Rendon was taken on June
30, 1983 to preserve his testimony since Rendon was leaving the
country for Indonesia the following week (Deposition transcript,
Exhibit P-3 at 6). At the deposition petitioner was represented
by Phyllis K. Caldwell, Esq., and Francis J. Nielson, Esq., appeared for respondent. A reading of the deposition indicates
that Mr. Nielsen was present and took part in the examination of
witness Rendon.
It is also true that Mr. Nielsen left the
deposition before it was completed (see deposition page 21). He
did not state his reason for leaving, but he entered a number of
objections on the record. Most of the objections relate to the
competency of witness Rendon to render an expert opinion on
electrical matters. ~/
A factor further bearing on this issue is that a hearing in
the Markey Mine cases was scheduled on November 15, 1983. At
that hearing respondent's request for a continuance was granted.
The record of the proceeding at that hearing reflects some
discussion of the status of attorney Nielsen (Tr. of November 15,
1983 at pages 10, 19, 20, 22-23). There is however, no indication that attorney Nielsen's services had been terminated as
of November, 1983. I, accordingly, conclude Mr. Nielsen had the
authority to represent respondent at the Rendon deposition in
June, 1983.
The deposition was proper evidence under the Commission's
Rules of Procedure, Rule 56, 29 C.F.R. § 2700.56 and under the
Federal Rules of Civil Procedure, Fed. R. Civ. P., Rule 26.
Citation 576708
This citation alleges a violation of 30 C.F.R. § 57.12-13,
which provides:
57.12-13 Mandatory. Permanent splices and repairs made
in power cables, including the ground conductor where
provided, shall be: (a) Mechanically strong with
electrical conductivity as near as possible to that of

1/ The judge did not have an opportunity to rule on the
objections at the hearing. But, having read the deposition,
I conclude that a number of them are well taken. Those
objections, relating to the competency of witness Rendon to
render an expert opinion pertaining to electricity, as stated in
Exhibit P-3, on pages 16, 17, and 22 are sustained. The answers
of the witness are, accordingly, stricken. The balance of
respondent's objections are overruled.

2668

the ori9inal; (b) In~~ulated to a degree at least equal
to that of the original, and sealed to exclude moisture;
and, (c) Provided with damage protection as near as
possible to that of the original, including good bonding
to the outer jacket.
Suminary of the Evidence
MSHA's evidc~ce: George Rendon testified by deposition and
Preston Hunt appeared in person.
George Rendon issued citations in 1981 and 1982 at
respondent's uranium mine. The company mines by using a drift
and room process (Exhibit P-3 at 7). Employment at the mine has
ranged from a high of eleven to a low of three. In 1980 and 1981
they were mining at the site {P-3 at 8).
Rendon, who was not experienced in electricity, issued
Citation 576708 on August 7, 1980 because a splice in a
distribution cable was not adequately grounded. The citation was
issued for a violation of § 57.12-13, now docketed in case WEST
81-76-M {P-3 at 9, 10, 13; deposition Exhibit 1).
Wendell Jones and·Preston Hunt accompanied Rendon. The
original assessed penalty 2/ was $34 and at a conference it was
reduced to $28.00 {P-3 at 10).
The citation arose when the inspection party stopped to see
if a fan was grounded. The inspector noticed the cable was
three-quarters of an inch thick CP-3 at 10, 11).
Jones said he didn't know if there was adequate insulation
under the splice. As they walked towards the working face they
saw two other places where the splice was smaller than the
original cable. On unwrapping it they found there was no
insulation.
It consisted of bare wire and the connector CP-3 at
12). The cable was being used to power a fan CP-3 at 12-13).
The three splices in the main airway were not mechanically strong
and could not exclude moisture {P-3 at 16, 24). The cable was
hung on hooks about every 20 feet (P-3 at 16). In the immediate
vicinity of the cable there were three miners removing ore.
Equipment operating in this eight-foot drift could hit the cable,

2/ The petition for assessments shows the original assessed
penalty was $28.00.

2669

or the equipment could hool: it c.r,c) pJ 11 i '- ape.rt.
TtH:: rr,i r1~,r :-.
~~re in close proximity to this con6ilio~ CP-3 at 18-20).
~11e
equipment in the drift was 15 feet long by 5 feet wide CP-3 at
19) •

If an accident occurred it would affect the entire mine.
The condition was corrected within the time specified by the
citation CP-3 at 24).
Rebuttal Witness Preston Hunt testified that he has been an
electrician for 49 years.
He possesses considerable electrical
experience (Tr~ 262-264).
Rendon issued this citation because Witness Hunt, at the
time, was not a duly authorized representative of the Secretary
(Tr. 264).
The outside diarn~ter of the cable was 1 and 1/2 inches and
the splices were of lesser thickness. The smallest diameter was
three-quarters of an inch {Tr. 2661 Exhibit P-4).
Bayless had used SCOTCHGUARD, a pliable taping material, to
fill in a proper splice (Tr. 267).
Bayless, at Jones' request, took the splice apart and found
there was insufficient insulation. A minimal impact could
penetrate the wires and cause a short or a ground (Tr. 268).
The conductors in the cable were three No. 8 wires protected
by a neoprene cover. It was 600 volts phase to phase. These
·splices would not be acceptable to a certified electrician. Here
there was a loss of mechanical protection. With the loss of such
protection the splices can pull apart (Tr. 270).
Respondent's evidence consisted of witnesses Hanson Bayless
and Wendell Jones. The splices, in Bayless' opinion, were not
defective.
Initially, a split bolt connector is used to hold the
two wires together. Insulating compound then covered the wires.
Each wire is wrapped with electrical tape and all three wires are
taped together. After wrapping the electrical wires in the
splice the cable would be thinner than the original cable because
the fiber cords had been cut away. Jones had seen qualified
electricians make splices in this fashion (Tr. 223-227, 236,
237).
A dispute exists as to who unwrapped the splice. Hunt
claimed that Bayless unwrapped it. But Bayless specifically
denied that he did so {Tr. 282, 286).
Discussion
On this citation I credit the testimony of MSHA witness Hunt.
He has 49 years of extensive experience as an electrician.
It is

2670

clear that the splices here were not as mechanically strong as
nearly as possible because the original fibers had been cut away.
Exhibit P-4, an illustrative drawing, shows the deterioration of
the mine distribution cables.
Bayless testified that the splice was not defective;
further, he had seen experienced electricians splice in this
fashion.
I am not persuaded. A splice made by an experienced
electrician is not necessarily mechanically strong, insulated and
provided with damage protection as near as possible to that of
the original. Respondent's witnesses are not as experienced nor
as expert as petitioner's witness Preston Hunt. Jones indicated
the cable splice was a matter Bayless should handle (Tr. 237).
Bayless, at best, had a minimal background in electricity (Tr.
224).
The citation should be affirmed.
Citation 576709
This citation alleges a violation of 30 C.F.R. § 57.12-25,
which provides:
57.12-25 Mandatory. All metal enclosing or encasing
electrical circuits shall be grounded or provided
with equivalent protection. This requirement does not
apply to battery-operated equipment.
Summary of the Evidence
Inspector George Rendon issued this citation on August 7,
1980 for an alleged violation of § 57.12-25 CP-3 at 24, 25; deposition Exhibit 2).
They were inspecting an emergency escapeway when they
observed that a ground wire was not connected to a switch box.
The inspector did not find any other ground. The ground wire,
which was hanging loose, was about eight feet from the switch box
(P-3 at 25, 26-28).
The main power source and ground wire came through a bore
hole which had been drilled from the surface into the tunnel.
The casing was ungrounded. Further, it was not protected by
equivalent grounding protection CP-3 at 26). The 440-volt switch
box, hanging on a rib, measured 24 inches wide and 36 to 40
inches long CP-3 at 26, 30). The company was aware of the
grounding requirement because other switch boxes were properly
grounded CP-3 at 30).

2671

A lightning
the drift.

s~orrn

could cause a short.

There

~2S

water in

A contractor does respondent's electrical work (P-3 at 28).
This citation was abated within the time specified (P-3 at
32) .
The original assessment was $34 and at a co~ference it was
reduced to $14. The notice of assessment proposes a penalty of
$14 for this citation (P-3 at 25).
Hunt, MSHA's rebuttal witness, confirmed Rendon's testimony.
Hunt observed that the messenger wire, which was loose, could
have returned the fault current to the source of its generation.
But the messenger wire was not attached to the metal portion of
the switch gear to provide a path for the fault current to be
returned. Hunt had prepared an illustrative drawing showing the
2/0 A.W.G. cable.
If a person touched the box he could be shocked even though
the area was not damp. The absence ·of a dry platform increased
the hazard. A dry floor has a measure of conductivity (Tr.
274-285; Exhibit P-5).
Respondent's witness Jones stated he didn't remember too
much about this condition. They thought it had been properly
grounded (Tr. 237).
According to Jones, no miner had ever been shocked at Markey
Mines (Tr. 238, 241).
Discussion
The standard requires that all metal encasing electrical
circuits shall be grounded or provided with equivalent protection.
The uncontroverted evidence shows the main metal switch box was
not so protected.
The fact that no miner has ever been shocked at the Markey
Mines is not a defense. A prime purpose of the Act is to prevent
the first accident.
The citation should be affirmed.
Citation 576710
This citation alleges a violation of 30 C.F.R. § 57.12-20,
which provides:
57.12-20 Mandatory. Dry wooden platforms, insulating
mats, or other electrically nonconductive material

2672

shall b~ kept in place at all switchboards and powercontrol switches where shock hazards exist. However,
metal plates on which a person normally would stand
and which are kept at the same potential as the grounded, metal, non-current-carrying parts of the power
switches to be operated may be used.
Summary of the Evidence
MSHA Inspector Rendon wrote this citation for a violation of
57.12-20. At the ~ain power control switch box (discussed in
the prior citation) there was no insulating mat or dry wooden
platform for a person to stand on when activating the switch.
Shock hazards exist at this location. There was no metal plate
kept at the same potential as the grounded metal non-carrying
parts of the power switch. The hazard includes possible
electrocution. Mats were supplied in front of similar switches
and motors. The dangers are inherent in this situation as were
discussed in connection with Citation 576709 CP-3 at 32, 33i
deposition Exhibit 3).
§

This hazard was abated in the time specified.
MSHA's witness Hunt confirmed there was no mat. Further,
there was water caused by a leaking water line approximately 50
feet from the switch (Tr. 279-281).
Wendell Jones testified he did not believe there was a
hazard because a miner would be protected by his rubber boots (Tr.
243).
The parties stipulated that the evidence already in the
record concerning hazards could be considered in connection with
this citation (Tr. 244).
Discussion
No credibility issue is presented.
violation and respondent confirms it.

Petitioner establishetl a

The citation should be affirmed.
WEST 82-182-M
Citation 584354
This citation, relating to ground conditions, alleges a
violation of 30 C.F.R. § 57.3-22. The standard was cited in WEST
80-487-M, supra.

2673

Surr1.mary of the evidence

Inspector Rendon issued this citation on October 27, 1981.
Walking down the main drift, the inspector observed loose slabs
one to two inches from the roof. The slabs were two to three
feet wide and four to six inches thick (P-3 at 35, 38; deposition
Exhibit 4).
The loose slabs were at three different locations in
the middle of the back of the main haulageway (P-3 at 35). One
was on the straightaway of the main drift, one was on the right
side, and one was close to where they were doing the mining.
This was a location where supervisors are to check daily.
Further, in this area miners are to test the ground at the
beginning of each shift (P-3 at 36).
The ground was not adequately supported. Work was not being
done in this area but miners had to pass here to reach their
work stations CP-3 at 37).
In the inspector's opinion the slabs
had been loose for more than a day or two. Blasting vibrations
could have caused such a condition. A miner could be killed if
the slab fell when he came under it CP-3 at 38).
Some ground control devices, such as rock bolts and
chainlink wire, were in an area near one of the loose slabs.
Foreman Bayless told the inspector that they had failed to see
the loose.
Further, they were working on another area and didn't
have enough bolts to finish it. Three miners and a foreman
working in the mine were exposed to this condition CP-3 at 40).
The original assessment on Citation 584354 was not reduced
at conference and it remained at $14 (P-3 at 35).
Witness Wendell Jones testified that the condition for which
the company was cited is called "feathered ground" (Tr. 247).
The slabs are about as stated, namely two feet wide and three
feet long and four to six inches thick (Tr. 247). As they go
back they get a little thicker. They are periodically barred
down (Tr. 247). When Jones tested the slabs they couldn't bar
them down so roof bolts were used (Tr. 248).
If they barred down
the area periodically, none of the slabs would come down (Tr.
250).
Discussion
The recollection of witness Jones concerning this event is
somewhat hazy. But the regulation requires loose ground to be
either barred down or adequately supported. Since neither action
took place before this citation was issued I conclude that a
violation of the regulation occurred.
The citation should be affirmed.
Citation 584356
This citation alleges a violation of 30 C.F.R. § 49.4,
which provides, in part, as follows:

2674

(b) An application for alternative mine rescue
capability shall be submitted to the District
Manager for the district in which the mine is
located for review and approval.
Inspector Rendon issued this citation because Mr. Bayless
indicated to him that the mine rescue plan had not been mailed to
the MSHA District Manager (P-3 at 41; deposition Exhibit 5). The
mine did not have a mine rescue plan (P-3 at 43).
The witnes~ had also reviewed the MSHA records in Moab, Utah
and called the Denver District off ice prior to inspecting the
mine. There was no evidence that the application had been submitted by Markey Mines (P-3 at 44, 45). Rendon had no knowledge
that Markey Mines ever submitted an application under § 49.3 to
qualify as a small and remote mine (P-3 at 45). The mine abated
this condition by submitting a plan (P-3 at 46).
Mr. Black testified that the mining operation was winding
down immediately before this citation was issued. He also requested a waiver from MSHA but never received a reply. The
parties stipulated that respondent could supplement the record
with a copy of Mr. Black's letter requesting a waiver. A copy of
the request was filed~/ and marked as Exhibit R-1 (Tr. 253).
Witness Bayless indicated that he was told the company could
get a waiver of the mine rescue plan. In October, 1981, there
were either three or five employees at the mine.
Discussion
Mr. Black's letter, dated a month before this citation,
requested a waiver of this regulation.
MSHA cannot issue a waiver for Title 30, Code of Federal
Regulations, Part 49, relating to Mine Rescue Teams. But there
is a provision permitting MSHA to approve alternative mine rescue
capability for small and remote mines. Markey Mines fits that
category (§ 49.3).
Respondent is charged with violating § 49.4. The regulation
requires, in part, that an alternative rescue capability plan
shall be submitted to MSHA's District Manager. On the facts

ll

There was no stipulation by the parties concerning MSHA's
purported reply letter to Mr. Black and it is not evidence in the
case.

2675

there was a technical violation but respondent's good faith and
minimal negligence are established by his letter to MSHA written
a month before the citation was issued. But these matters relate
to the imposition of a penalty and not to whether a violation
occurred.
WEST 81-392-M
Citation 583991
Respondent: Calvin Black Enterprises
This citation alleges a violation of 30 C.F.R. § 57.5-39,
which provides:
57.5-39 Mandatory. Except as provided by standard
57.5-5, persons shall not be exposed to air containing
concentrations of radon daughters exceeding 1.0 WL
in active workings.
Since petitioner offered no evidence to support this
citation an order vacating the citation is proper (Tr. 246).
Citation 583992
This citation alleges a violation of the radon daughter
regulation, § 57.5-39, cited, supra.
In this case since petitioner offered no evidence, an order
vacating the citation is proper (Tr. 246).
CLOSING REMARKS BY
CALVIN BLACK
At the conclusion of the hearing Mr. Black made a closing
statement (Tr. 294-297).
I indicated at the conclusion of his
remarks that they should be addressed to a forum having
legislative power and not one who has adjudicative authority CTr.
298).
However, portions of Mr. Black's remarks do require a reply
by the judge.
Mr. Black stated in his remarks that he did not secure
certain information he requested under the Freedom of Information
Act (Tr. 296).
I note that Mr. Black had not requested any
information under the Commission's discovery rules.
Such a
suggestion was made by the judge to Mr. Black on December 15,
1983. (Tr. 11-12, hearing of December 15, 1983).
Mr. Black's remaining statements in his closing argument are
not relevant to these proceedings and his allegations as to MSHA
are not substantiated on the record.

2676

Cl Vl L FI l~l.LTIES

in 30

The six criteria for assessing a civil penalty are set forth
u.s.c. § 820{i).

Following the statutory directives I find the following
facts: in accordance with the stipulation respondent has no adverse history of prior violations for a period of two years. The
mine is small but so are the proposed penalties. Hence, I feel
they are generally appropriate. The operator was moderately
negligent as the violative conditions could have been readily
corrected. As previously indicated the negligence of the
operator in connection with Citation 336810 (unsigned escapeway)
has been overstated. The operator has discontinued its mining
operations; accordingly, the imposition of a penalty cannot
affect its ability to continue in business. The gravity of each
violation is apparent on the facts. Respondent's statutory good
faith is established by its actions in abating the violative
conditions. As previously discussed, respondent's good faith has
been understated in connection with Citation 584356 {rescue
plan).
In the following cases, wherein the respondent is Markey
Mines Incorporated, the following penalties should be assessed:
WEST 80-376-M
Citation No.
336689
336810

Proposed
Penalty
$26
36

Disposition
$26
18

WEST 80-416
336866

$38

$38
WEST 80-487

337161

$90

$90
WEST 81-76-M

576708
576709
576710

$28
14
28

$28
14
28
WEST 82-182-M

584354
584356

$14
12

$14
6

\

267?

ID the f ollo~ing cas~ Calvin Black Enterprises is the
responoent·and all penalties should be vacated.

Case No. WEST 81-392-M
Citation Ko.
:,83991
583992

Proposed
Penalty
$38
32

Disposition
Vacate
Vacate

Bosed on the foregoing findings of fact and conclusions of
law I 8nter the following:
ORDER
1.
In WEST 80-376-M the following citations are affirmed
and penalties assessed therefor:

Citation No.
336689
336810

Penalty
$26
18

2.
In WEST 80-416-M the following citation is affirmed and
a penalty assessed therefor:

Penalty
$38

Citation No.
336866

3.
In WEST 80-487-M the following citation is affirmed and
a penalty assessed therefor:

Penalty
$90

Citation No.
337161

4.
In WEST 81-76-M the following citations are affirmed and
penalties assessed therefor:

Penalty
$28
14
28

Citation No.
576708
576709
576710

5.
In WEST 82-182-M the following citations are affirmed
and penalties assessed therefor:

Penalty
$14

Citation No.
584354
584356

6

·2678

6.
In ~"'EST 81-392-g, ·dier,:::ir1 Cc.. l\'i:-i Bl<::. c)~ :Sntcrj.r:i.::...:os is
the respondent, the following citationB and all proposeo
penalties therefor are vacated:
Citation No.
583991
583992

ktJ6:~
~~~~inistrative

Law Judge

Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294 (Certified Mail)
Mr. Calvin Black, President, Markey Mines Inc., P.O. Box 906,
Blanding, Utah 84511 (Certified Mail)
/blc

267.9

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

NOV 2 '7 1984

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
PATRICIA ANDERSON,
Complainant

Docket No. WEST 80-155-DM
MD 79-267
Cotter Mill

v.
STAFFORD CONSTRUCTION COMPANY,
Respondent
DECISION AFTER REMAND
Appearances: James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Complainant:
Mrs. Jackie Stafford, Stafford Construction Company,
Grand Junction, Colorado, pro ~·
Before:

Judge Morris

This case involves a complaint of discrimination filed by
the Secretary of Labor on behalf of Patricia Anderson pursuant to
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seg. Complainant Patricia Anderson alleged the operator
discriminated against her and thereby violated section 105(c} of
the Mine Act, 30 u.s.c. § 815(c).
The case was heard by the undersigned judge who entered an
order dismissing the complaint, 3 FMSHRC 2177 (1981). The
Commission subsequently affirmed the judge, 5 FMSHRC 618 (April
1983).
Thereafter, on April 20, 1984, the U.S. Court of Appeals for
the District of Columbia Circuit entered its decision in the
matter, 732 F.2d 954 CD.C. Cir. 1984). The Court reversed the
Commission's decision and concluded that Stafford Construction
Company's discharge of Patricia Anderson violated section lOSCc)
of the Mine Act, 30 u.s.c. § 815Cc). The Court further remanded
the case to the Commission "for the award of back pay and other
remedies, if warranted", 732 F.2d at 962. A certified copy of
the Court's judgment, in lieu of a mandate, was received by the
Commission on July 26, 1984.

2680.

On August 9, 1984 the Commission remanded the case to the
judge fol. further proceedings consistent with the Court's
opinion.
The judge set the case for a hearing in Canon City, Colorado
on September 13, 1984. Respondent requested a continuance and
the hearing on Lhe merits was rescheduled and took place on
October 11, 1984.
The parties waived the filing of post trial briefs.
Issues
The issues concern whether back pay is due Patricia
Anderson, and, if so, the amount of the back pay. A secondary
issue concerns the assessment of a civil penalty against
respondent.
Summary of the Evidence
At this hearing complainant Patricia Anderson reaffirmed her
previous testimony and indicated she had been terminated by
respondent on February 9, 1979. Her rate of pay at that time was
$1,050 per month. She found employment again on June 7, 1979.
(Transcript at pages 29 and 30, hearing of October 11, 1984).
Complainant received unemployment compensation of $110 per
week for 14 weeks from the State of Colorado. Complainant
further submitted exhibits calculating the back pay and interest.
These calculations were summarized as follows:

1st Qtr 1979

Backpay
Due
$1,696.10

Interest
to 9/13/84
$1,182.82

Quarter
Total
$2,878.92

2nd Qtr 1979
Totals

2l277.62
$3,973.72

lf 554.22
$2,737.04

3!831.84
$6,710.76

Interest at the current rate of 11% per annum
C.0003055 daily) will continue to accrue on
$6,710.76 after 9/13/84 at the rate of $2.05 per day.
(Exhibit P-A).
Jackie Stafford, formerly the Secretary/Treasurer for
respondent, testified that respondent is now defunct, no longer
exists, and has no officers (Tr. 10, 17). Respondent's 1981
income tax return shows a negative balance CTr. 22; Exhibit R-C).
There was a $50,000 cash bond posted at the time of
company's liquidation. According to Mrs. Stafford, both Tom
Smith ~nd Steve Smith (complainants whose cases were heard with
the Patricia Anderson case), received their back pay from that
bond (Tr. 8-9).

2681

Mrs. Stafford further indicated that respondent had a
$453,000 letter of credit. Rippy Construction Company was
apparently awarded that asset. Mr. Rippy told Mrs. Stafford that
any wages due to Patricia Anderson would be paid (Tr. 10, 18).
The Internal Revenue Service cleared respondent after an
audit and a criminal investigation (Tr. 13).
Respondent's exhibits included calculations showing unpaid
bills totaling $111,732.83. Further, respondent submitted a copy
of a judg·ment against it and in favor of Rippy Construction in
the amount of $1,313,561.35. In addition, respondent offered a
copy of its 1981 Corporation Income Tax return (Exhibits R-A, R-B
and R-C).
Discussion
Respondent's evidence establishes that it is insolvent.
However, bankruptcy and insolvency of a respondent are insufficient reaso~s to stay proceedings under the Act. Secretary on
behalf of George w. Heiney et al v. Leon's Coal Company et al, 4
FMSHRC 572, 574 (1982).
In connection with an award of back pay, a credibility issue
arises as to whether Ed Rippy of Rippy Construction paid Patricia
Anderson her back wages. Mrs. Stafford claims that Rippy stated
that Patricia Anderson's wages would be "taken care of" (Tr. 18).
On the other hand, Mrs. Anderson denied that Rippy paid her any
money. In fact, she had "never heard of that" (Tr. 31).
I credit Mrs. Anderson's testimony. She would know if a
third party paid her. Respondent's claim is, at best, based on
unsupported hearsay.
In the presentation of respondent's evidence Mrs. Stafford
also sought to offer the records that would support respondent's
reasons for discharging Patricia Anderson. The judge ruled that
this evidence was not relevant because that issue had been
decided by the Court of Appeals when it ruled that respondent had
discriminated against complainant CTr. 24-26).
Based on the record, complainant is entitled to back wages
and interest in the total amount of $6,852.21. The interest is
calculated to the date of the issuance of this decision after
remand, namely November 21, 1984 (Exhibit P-A). Complainant's
interest calculations are in accordance with the Commission
decision of Secretary on behalf of Milton Bailey v. ArkansasCarbona Company and Walker, 5 FMSHRC 2042 (December, 1983).

2682

Complainant receiv~d unemployment compensation from the
State of Colorado for 14 weeks in the am6unt of $110 per week, or
a total of $1,540. The total award to complainant in this case
includes said amount but the applicable Colorado statute requires
complainant to reimburse the State for said amount, section
8-2-119 C.R.S. 1973. Complainant is, accordingly, directed to
reimburse the State of Colorado upon collection of the back pay
due her.
CIVIL PENALTIES
The mandate of the Appellate Court encompasses the assessment of a civil penalty against respondent.
The statutory criteria to be followed in assessing such a
penalty is contained in section llOCi) of the Act, now 30 u.s.c.
§ 820(i).
It provides, in part, as follows:
The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing
civil monetary penalties, the Commission shall consider
the operator's history of previous violations, the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification
of a violation.
In considering these factors, I find that the operator has
no prior adverse history except for the fact that Tom Smith and
Stephen Smith were discharged in violation of the Act before
Patricia Anderson was unlawfully discharged. The Secretary
proposes a civil penalty of $8,000 and while respondent was insolvent at the time of the hearing it had gross receipts in
excess of four million dollars in 1981 (Tr. 47, 48). Accordingly, the proposed penalty appears appropriate in relation to the
size of the business of the operator. The operator's negligence
is not a factor on this record. The assessment of a penalty will
not affect the operator's ability to continue in business because
it has already terminated its activities and discontinued
operations. The gravity of the violation is exceedingly high.
Patricia Anderson was retaliated against because she refused to
lie to MSHA investigators. Miners need to know they are
protected and here the actions by respondent struck at the heart
of the enforcement of the discrimination provisions of the Act.
The final factor, statutory good faith, is not an element herein.

2683

Considering all of the Etatutory criteria, I consider that a
civil penalty in the amount of $8,000 is appropriate.
Based on the entire record, I enter the following:
ORDER

1. Complainant Patricia Anderson is awarded and respondent
is ordered to pay to her the following amounts:
Back Pay
Interest
Total

$3,973.72
2,878.49
$6,852'.21

2. The interest awarded herein is to the date of the
issuance of this decision after remand.
3. Upon collection of the back pay provided in paragraph 1,
complainant is ordered to reimburse the State of Colorado for the
unemployment compensation she receiv.ed from the State between the
time of her discharge on February 9, 1979 and her subsequent
employment on June 7, 1979.
4. A civil penalty of $8,000 is assessed against
respondent.

Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294
(Certified Mail)
Mrs. Jackie Stafford, Stafford Construction Company, P.O. Box
1148, Grand Junction, Colorado 81502
CCer~ified Mail)
/blc

2£84

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

NOV 2 7 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

.

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 84-166
A.C. No. 46-03805-03570

v.
SOUTHERN OHIO COAL COMPANY,
Respondent
SOUTHERN OHIO COAL COMPANY,
Contestant

Docket No. WEVA 84-325
A.C. No. 46-03805-03585

.

v.

CONTEST PROCEEDINGS
Docket No. WEVA 84-94-R
Citation No. 2260722; 11/30/83

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

Docket No. WEVA 84-96-R
Order No. 2260729; 12/7/83
Martinka No. 1 Mine
DECISION

Appearances:

William M. Connor, Esq. and Mark v. Swirsky, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Secretary of
Labor;
David A. Laing, Esq., Alexander, Ebinger, Fisher,
McAlister and Lawrence, Columbus, Ohio, for the
Southern Ohio Coal Company.

Before:

Judge Melick

These consolidated cases are before me pursuant to section
105(d} of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801, et seq., the "Act", to contest citations and orders
issued to the Southern Ohio Coal Company CSOCCO) and for review
of civil penalties proposed by the Mine Safety and Health Administration CMSHA), for the violations charged therein.
A motion for approval of a settlement agreement was considered at hearing with respect to Docket No. WEVA 84-325. A reduction in penalty from $800 to $700 was proposed for the violation
charged in Order No. 2260729--a violation of the standard at 30
C.F.R. § 75.400 for alleged accumulations of loose, dry coal in
the return air course of the North Main Section. Accumulations
were found by the MSHA inspector in three different locations and

2685

each was eight feet in length, twelve feet in width, and five
feet high.
It is stipulated that in view of the location and
size of the accumulations, the section foreman should have known
of their existence and had them removed.
Ten employees were considered exposed to the explosion and fire hazard created by the
accumulations. The Secretary suggested that the small reduction
in penalty was appropriate in light of the absence of any ignition sources within the cited areas. The nearest source was alleged to have been cables approximately three hundred feet inby.
Considering the size of the operator, its prior history of violations, and the good faith abatement of the cited condition, I
conclude that the proposed penalty of $700 is appropriate.
I
therefore approve the settlement proposal. The request of the
mine operator to withdraw the corresponding contest proceeding,
Docket No. WEVA 84-96-R, is also approved.
29 C.F.R. § 2700.11.
The remaining citation at issue, Citation No. 2260722, alleges a violation, under the standard at 30 C.F.R. § 75.1403, of
a safeguard notice issued at the Martinka No. 1 Mine on September
14, 1978. The safeguard notice required that all conveyor belts
in the mine have at least twenty four inches of clearance on both
sides of the belt. The citation alleged that a clear travelway
of twenty four inches was not provided along the 1-1 east conveyor belt for a distance of fifteen feet because of water lying ten
inches deep from rib to rib at the No. 7 stopping.
The evidence is not disputed that a pool of water fifteen
feet long did in fact lie in the travelway at the No. 7 stopping.
According to Inspector Harry Markley, Jr., the water was ten
inches deep at the one location where he measured it with a steel
tape and that the ground beneath the water presented a serious
slipping and stumbling hazard.
He observed that the area under
water was slippery from rockdust and muck and that rock could be
expected to fall into the walkway. Because of the close proximity of the conveyor belt and its exposed rollers he thought that
injuries were likely to people traveling through the cited area.
The belt and its moving rollers were not guarded and preshift
examiners, belt maintenance men, shift foremen, inspectors, and
any member of the belt crew carrying supplies were exposed to the
hazard. Markley opined that the water came from seepage over a
period of days and he observed that some water had already been
pumped out of the travelway.
Joseph Pastorial, chairman of the Union Safety Committee
accompanied Inspector Markley on his November 30, 1983, inspection.
He testified that the water in the pool came within one
inch of entering his twelve inch high boots. According to
Pastorial, the water extended from rib to rib for a distance of
fifteen feet.
He observed that the wet f ireclay bottom at that

2686

location was very slippery and created a particular hazard because of its location adjacent to the belt structure and rollers.
Jon T. Merrifield, Safety Director for the Martinka No. 1
Mine, did not directly contradict the government witnesses.
Rather he testified only that in the areas he tested, the bottom
of the pool of water was smooth, firm and not slippery and that
in the area he measured, the water was not deeper than seven
inches.
It was Merrifield's opinion that even if someone did
slip in the water it would be unlikely for him to fall into the
belt because the momentum of the fall would cause him to fall
forward into the water and not sideways into the belt. Under the
circumstances, however, it is clear that the terms of the safeguard notice were violated.
The mine operator nevertheless argues that the citation was
erroneously issued because conveyor belts carrying coal are not
within the purview of the safeguard notice provisions of the standard at 30 C.F.R. § 75.1403. The standard provides as follows:
"[o]ther safeguards, adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with respect
to transportation of men and material shall be provided." SOCCO
argues that coal is not a "material" within the scope of the
cited standard and that accordingly the safeguard notice herein
was issued without a proper legal foundation.
In furtherance of
its position it cites the decision of Commission Judge Koutras in
Monterey Coal Company v. Secretary, 6 FMSHRC 424 (1984).
Whether or not coal is a "material" is in any event irrelevant since it is clear that the safeguard standard applies as
well to minimizing hazards associated with the transportation of
men and materials by foot, in this case miners traveling along
the walkway adjacent to the moving conveyor belt. Accordingly
the safeguard notice was within the statutory and regulatory authorization under 30 C.F.R. § 75.1403.
SOCCO argues, secondly, that even if the condition cited
herein was hazardous it did not come within the safeguard notice
alleged to have been violated. The safeguard provides as
follows:
A clear travelway at least 24 inches along the no. 1
conveyor belt was not provided at three (3) locations,
in that there were fallen rock and cement blocks.
All conveyor belts in this mine shall have at least
24 inches of clearance on both sides of the conveyor
belt.

2687

This is a notice to provide safeguards.
It maintains that the safeguard should be strictly construed and
that accordingly should be held to apply only to "tripping and
stumbling" hazards and not to the slipping hazard allegedly presented by the cited pool of water. However even assuming that
safeguards are to be strictly construed there is ample credible
evidence in this case that the cited pool of water presented a
tripping and stumbling as well as a slipping hazard. Even though
"fallen rock", "cement block", and other similar debris may not
have been found in the water, it may reasonably be inferred from
the evidence that such debris could very well come to rest under
the water from the adjacent ribs.
SOCCO also argues that the safeguard requires only "24
inches of clearance" and that such clearance was provided in this
case in spite of the presence of water. As the Secretary points
out, however, the essence of the safeguard is that a "clear travelway [of] at least 24 inches" must be provided. The travelway
cited herein was not clear in that it was obstructed by a pool of
water some 10 inches deep, 15 feet long, and extending from rib
to rib. SOCCO's arguments are accordingly rejected and the citation is upheld.
I find, moreover, based on the undisputed facts that a serious falling hazard existed as a result of the cited conditions
and that with only a 24-inch clearance between the rib and walkway and the exposed rollers on the adjacent conveyor there was an
added grave hazard from pinch points. Serious injuries and even
fatalities were reasonably likely and under the circumstances the
violation was also "significant and substantial".
Secretary v.
Mathies Coal Company, 6 FMSHRC 1 (1984). From the undisputed
evidence, I also find that this serious hazard was the result of
operator negligence in failing to correct conditions that were
undoubtedly known but which in any event should have been observed during the required preshift examination.
In determining
the amount of penalty herein, I have also considered that the
operator is large in size and abated the cited violation within
the prescribed time. The operator has a considerable history of
violations and indeed had previously been cited for the same violation as charged herein based on similar circumstances.
Order
Citation No. 2260722 and Order No. 2260729 with their attendant findings are upheld. The Southern Ohio Coal Company is
Ordered to pay the following civil penalties within 30 days of
the date of this decision:

2688

Docket No. WEVA 84-166 (Citation No. 2260722)
Docket No. WEVA 84-325 (Order No. 22 0729)
Contest Proceedings Dockets No.
84-96-R are Dismissed.

$300
700
and WEVA

!

'I

'

i

.

/

'- .--·

dge
Distribution:
Mark v. Swirsky, Esq., Office of the Solicitor, U.S. Department
of Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
David A. Laing, Esq., Alexander, Ebinger, Fisher, McAlister &
Lawrence, 17 South High Street, Columbus, OH 43215 (Certified
Mail)
/nw

2689

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

NOV 2 8 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 84-66
A.C. No. 01-01247-03585
Docket No. SE 84-67
A.C. No. 01-01247-03586

JIM WALTER RESOURCES, INC.,
Respondent

ORDER AFTER REMAND
The captioned matter has been remanded for consideration
of the operator's request that the trial judge's decision
approving settlement be corrected so as to reflect the fact
that the motion to approve settlement related only to Docket
No. 84-66.
Accordingly, it is ORDERED that the decision of October 19,
1984, approving settlement of the captioned matters be, and
hereby is, AMENDED to show that only in the case of Docket No. SE
86-66 was settlement approved.
It is FURTHER ORDERED that the
decision approving settlement in Docket No. 84-66 be, and
hereby is, CONFIRMED and that the operator pay the amount of
the settlement agreed upon, $150, on or before Friday,
December 14, 1984. Finally, it is ORDERED that pursuant to
the parties stipulation to waive a hearing and submit Docket No.
SE 84-67 for determination on the basis of the facts stipulated,
said docket be, and hereby is,
and jurisdiction retained
to decide the matter de novo.

Joseph B. Kennedy
Administrative Law
Distribution:
George D. Palmer, Esq., Office of the Solicitor, U.S. Department of Labor, 1929 Ninth Avenue South, Birmingham, AL 35256
(Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box
C-79, Birmingham, AL 35283
(Certified Mail)

/ejp

2690

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

NO\/ 29 \984
1

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

CIVIL PENALTY PROCEEDING
Docket No. YORK 84-5-M
A.C. No. 19-00076-05502
West Roxbury Crushed Stone

S. M. LORUSSO & SONS, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlements
for the two violations involved in this matter. The
originally assessed amounts totalled $196 and the proposed
settlements are for $150.
One citation was issued for failure to guard a tail
pulley. The Solicitor proposed a settlement for the
original amount of $98.
I find this settlement satisfies
the statutory criteria.
The second citation was issued for failure to wear
protective footwear.
The Solicitor has explained why the
operator's negligence was less than originally thought.
The original assessment was for $98 and the proposed settlement is for $52. I accept the Solicitor's explanation and
approve the settlement, but the operator should realize it has
the responsibility to implement its safety policies, including where appropriate, disciplining employees who defy them.
The operator is ordered to pay $150 within 30 days of
the date of this decision.

~c...l

Paul Merlin
Chief Administrative Law Judge

2691

Distribution:
David L. Baskin, Esq., Office of the Solicitor, U.S.
Department of Labor, John F. Kennedy Federal Building
Government Center, Boston, MA 02230 (Certified Mail)
Malcolm Dawson, S. M. Lorusso & Sons, Inc., 331 West Street,
Walpole, MA 02081 (Certified Mail)
/fb

'

2892

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

November 30, 1984

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 84-49
A. C. No. 36-00970-03537

v.

Maple Creek No. 1 Mine

UNITED STATES STEEL MINING
COMPANY, INC.,
Respondent
DECISION
Appearances:

Thomas Brown, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for U. S. Steel Mining Company, Inc.,
Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of civil
penalties filed under section llO(a) of the Act by the Secretary
of Labor against U. S. Steel Mining Company, Inc., for two
alleged violations of the mandatory safety standards.
The hearino was held as scheduled and documentary exhibits
and oral testim~ny were received from both parties. At the conclusion of the hearina, the parties were directed to file written
briefs simultaneously within 21 days of receipt of the transcript.
The briefs were filed and have been reviewed together with the
transcript.
The mandatory standard involved in each violation is section
302(a) of the Act, 30 U.S.C. § 862(a), 30 C.F.k. § 75.200
which orovides as follows:
Each operator shall undertake to carry out on
a continuin9 basis a program to improve the
roof control system of each coal mine and the
means and measures to accomplish such system.
The roof and ribs of all active underoround
roadways, travelways, and working places
shall be supported or otherwise controlled
adequately to protect persons from falls of

2693

the roof or ribs. A roof control plan and
revisions thereof suitable to the roof conditions and mining system of each coal mine
and approved by the Secretary shall be
adopted and set out in printed form on or
before May 29, 1970. The plan shall show the
type of support and spacing approved by the
Secretary. Such plan shall be reviewed periodically, at least every 6 months by the
Secretary, .taking into consideration any
falls of roof or ribs or inadequacy of support of roof or ribs. No person shall
proceed beyond the last permanent support
unless adequate temporary support is provided
or unless such temporary support is not required under the approved roof control plan
and the absence of such support will not pose
a hazard to the miners. A copy of the plan
shall be furnished to the Secretary or his
authorized representative and shall be
available to the miners and their
representatives.
Citation No. 2104531
Citation No. 2104531, dated May 24, 1983 sets forth the
alleged violative condition or practice as follows:
During the course of a fatal roof fall accident investigation it was revealed that
there was a violation of safety precaution
No. 3 of the operator's approved roof control
pl~n dated 2/10/83.
The violation occurred
in the face area of No. 6 room and No. 20
split intersection. Two mining surveyors
were approximately 26 inches and 36 inches
inby permanent root supports on the 20 split
side and approximately 11' 3 11 and 6 1 9 11 on
the 6 room side, under unsupported roof. The
roof control plan requires that only those
persons engaged in installing temporary supports shall be allowed to proceed beyond the
last row of permanent supports until temporary supports are installed. The violation
occurred in 7 flat Broom right 006 section.
Note - this citation will not be terminated
until the area involved is permanently supported and all employees (underground) are
reinstructed in No. 3 safety precaution of
the approved plan.

2694

Mr. Glenn Ward and Mr. Nathan Klinaensmith were engineers or
underground plan coordinators who insta~l~d spads and s~te lines
so that entries and crosscuts would be driven straight and at
oroper angles (Tr. 9). Mr. Klingensmith was Mr. Ward's assistant
(Tr. 23-24). On the morning in question the mine foreman,
Mr. Earl Walters, assigned them to install site spads at various
locations in the mine includina the No. 20 split at the
intersection of the No. 7 room-(Tr. 16, 30, 34).
When Mr. Ward and Mr. Klinaensmith arrived on the section
they saw the section foreman, M~. Walter Franczyk who was 011 the
telephone at the time (Tr. 30-31, 34). They said hello to the
section foreman but kept on qoing and did not stop (Tr. 36-37,
53). However, instead of going to the intersection of the
20 split and No. 7 room, they went to the intersection cf the
20 split and No. 6 room (Tr. 26). None of the witnesses could
explain why the engineers went where they did (Tr. 26, 29). When
the engineers arrived at the 20 split and 6 room intersection,
the continuous miner operator helper told them the root was bad
(Tr. 31). Mr. Klingensmith replied but his response was
unintelligible (Tr. 31). Mr. Klingensmith then went beyond the
last row of roof bolts and out under unsupported roof where he
installed site spads (Tr. 31-32). He was under unsupported roof
for five to ten minutes (Tr. 10-11, 31). The continuous miner
machine was then repositioned and some loose coal was cleaned up
(Tr. 31). Mr. Ward asked that the machine be left where it was
at the face (Tr. 32). He then went out under unsupported roof
and climbed up on the machine. Mr. Klinqensmith also went out
under the unsupported roof and was ~ither beside the machine or
climbing up on it when the roof fell killing both men (Tr. 32).
The operator does not dispute that both men were under unsupported roof when they were killed and that their actions
violated the roof control plan which prohibits anyone fro~ proceeding beyond the last row of permanent roof supports except for
the purpose of installing temporary supports. Nor is there any
dispute that the decedents were negligent in going beyond
supported roof in violation of the roof control plan.
At issue is whether under the circumstances presented the
operator also should be found nealiaent for the actions of its
employees. In determining the a~ou~t of civil penalty to be
asses~ed against an operaior, consideration of a foreman's action
is proper. Even where non-supervisory employees are involved,
the operator is not necessarily shielded from imputations of
negligence. AH Smith Stone Co., 5 FMSHRC 13 (1983). In such a
case it is necessary to look to such considerations as the
foreseeability of the miner's conduct, the risks involved, and
the operator's supervision, training and discipline of its
employees to prevent violation of the standard in issue.

2695

In this ·case the section foreman knew that the decedents
were on his section. Indeed, he saw them when they arrived. He
was on the telephone and they said hello to him. He did not however, stoo them to ask where they were qoina and what they were
doing. I accept the testimony of the MSHA inspector that the
section foreman is responsible for the safety of everyone en his
section (Tr. 15, 24-25, 38). The section foreman himself
specifically admitted this (Tr. 58). This being so, the section
foreman was negligent in not stopping the decedents to find
out their destination and what they were goino to do. People
cannot come and go as they please in an underground mine. It is
simply too dangerous. It was espRcially Jangerous here where the
foreman, continuous miner operator and mine helper all knew the
roof in the area was bad. The section foreman has the authority
and responsibility to control what is happening on his section.
He must exercise that authority and meet that responsibility. If
he does not, he is negligent, as he was in this case. Under such
circumstances the section foreman's negligence is attributable to
the operator. The violation was very serious since it bore a
direct causal relationship to the two fatalities.
A penalty of $7,500 is assessed.
Citation 2104532
Citation No. 2104532, dated 5/24/83, sets forth the alle9ed
violative condition or practice as follows:
During the course of a fatal roof fall accident investigation it was revealed that
there was a violation of drawing No. 1 of the
operator's approved roof control plan dated
2/10/83. The violation occurred during
mining of the face of No. 6 room from No. 20
split, 7 to 6 room in 7 flat right 8 room
right (006) section. After completion of
mining sequence No. 3 a second temporary roof
support was not installed on the canvas side
(left side) as required by the approved roof
control plan.
Drawing No. 1 of the operator's roof control plan entitled
"Temporary Support During Mining" sets forth the mining sequence
and the installation of temporary roof supports. The record is
uncontradicted that the second temporary roof support was not
installed when it should have been in the mining sequence (Tr.
68, 111-112). This constituted a violation of Drawing No. 1 of

2696

the plan and therefore a violation ot the mandatory standard.
ThE ooerator 1 s argument that Drawing No. 1 shodld not be applied

to this case must be rejected.
I recoanize that the intersection
was open so that ther~ were not two soiid walls of coal on the
sides of the No. 6 room. However, I tind persuasive the MSHA
ins;:>ector 1 s testimony that the row of permanent supports ( 11 c 11 on
Operator's Exhibit No. 3) is analogous to or takes the place of a
rib such as is indicated on Drawinq No. l (Tr. 102-103). Moreover, I am not willing to adopt an- interpretation of the roof
control plan that would leave no guidelines or requirements for
the routine drivinq of an intersection such as occurred here.
Finally~ the fact ihat the first roof support was installed in
accordance with,Drawing No. 1 shows that the miners themselves
believed that Drawing No. 1 was applicable. Drawing No. 23,
referred to by the operator is irrelevant because it is based
upon methods of ventilation advancement and gas testing which
everyone agreed were not present here (Tr. 79, 122).
The roof control plan is the operator's plan. If the
operator believes it does not specifically cover a particular
situation, especially a common one like this case, it can amend
its plan and seek approval from MSHA. Here, the conclusion is
unescapable that both the operator and MSHA believed Drawing
No. 1 applied but that after the fatality occurred, the operator
attempted to argue that nothing applied. This position is not
persuasive. Moreover, ad hoc revisions of a plan by an
Administrative Law Judgeona case-by-case basis should be
avoided. In light ot the foregoing, I tonclude that a violation
existed.
I accept the evidence which shows that the missing jack was
designed for roof support. The absence of such a jack in an area
of poor roof was serious and, meets the criteria adopted by the
Commission for the finding of a significa~t and substantial
violation. U. S. Steel Mininq Co., Inc., 8 FMSHRC 1834 (1984);
U • S • S t e e 1 i"I i n i n q Co • , I n c • , 8 f I'll SHRC 1 8 6 6 ( 1 9 8 4 ) •
Th e
Secretary's proof however, falls short of showing a causal link
between the absent bolt and the fall that occurred since the
inspector would only say, with visible reluctance, that it was
11
possible 11 that the additional bolt wodld have prevf.nted the
actual fall (Tr. 110-111). The inspector believed such a link
was speculative (Tr. 110). The bolt would have been at the edoe
of the fall area which is where the fall should have been
expected to break oft even if a bolt had been installed
(Tr. 111-112).

2697

The inspector testified that the operator was negligent in
not having the approved roof control plan followed (Tr. 70-71).
As set forth above, the Commission has held that the fact that a
violation was committed by a non-supervisory emplovee does not
necessarily shield an operator from being deemed negligent. In
such a case, the Commission has said that consideration must be
aiven to the foreseeability of the miner's conduct, the risks
involved, and the operator's supervising, training, and
disciplining of its employees to prevent violations of the
standard in issue. A. H. Smith Stone Company, supra. The
Solicitor did not address himself to any ofthese issues and the
record is silent as to them. Old Dominion Power Company,
8 FMSHRC 1866, 1895-6 (1984). The Solicitor has failed to meet
his burden on these factors. Accordinqly, I find the operator
not negligent.
A penalty of $350 is assessed.
ORDER
Citations 2104531 and 2104532 are both AFFIRMED.
In liaht of the foregoing, the operator is hereby ORDERED to
pay $7,850-within 30 days from the date of this decision.

-

Paul Merl in
Chief Administrative Law Judge

Distribution:
Catherine Oliver-Murphy, Esq., Oftice of the Solicitor, U. S.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., United States Steel Mining Company, 600
Grant Street, Room, 1580, Pittsburgh, PA 16230 (Certified Mail)
/gl

2698

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204i

RUSHTON MINING COMPANY
Contestant

NOV 30 84

CONTEST PROCEEDING
Docket No: PENN 85-44-R
Order No: 2255375; 11/1/84

v.

Rushton Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
DECISION
Appearances:

Joseph T. Kosek, Esq., Rushton Mining
Company, Ebensburg, Pennsylvania for
Contestant
Robert A. Cohen, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Respondent

Before:

Judge Moore

This case was heard on an expedited basis because of
Rushton's allegation that the way MSHA was requiring it
to comply with its self-contained self-rescue device
storage plan created a serious hazard to the miners.
The case involves differences of opinion and interpretation
rather than disputed facts.
Contestant's self-contained self-rescue device storage
plan (Respondent's exhibit 4, consisting of eight letters)
requires, among other things, that:
"the storage area for sections shall be in
the designated intake escapeway or in intake
air adjacent to and connected to the
designated intake escapeway".
(See letter of July 6, 1982). Respondent interprets that
provision as allowing it to designate as the storage area
the inby end of the track in the trolley haulage entry which

2699

is on intake air and which is a designated escapeway. MSHA
interprets the provision as requiring storage in the No. 5
entry which it argues is the main intake air entry and designated
escapeway or in the No. 4 entry which is also intake air and
adjacent to a designated escapeway.
Operator's exhibits 2 and 3 and Respondent's exhibit 5
are all maps of the section in question and the face area
is at the tops of the maps. The No. 1 entry to the left is
return air. The No. 2 entry is the trolley haulage entry for
men and supplies and is also on intake air and is a designated
escapeway. No. 3 entry is the belt haulage entry which is also
on intake air. No. 4 and 5 entries are intake air, No. 5
being the other designated escapeway.
The mine consists of five sections and the company's
method of complying with its plan is to designate the
trolley haulage (or track entry) as an escapeway, arrange
to have it on intake air and store the self-contained
self-rescue devices in the portabus at the inby end of
the track. The five sections are not identical as to
which entry is the track entry, and which is the belt entry,
etc. They are the same to the extent that no matter what
section a miner is working in he knows that the self-contained
self-rescue devices are located at the inby end of the
track entry, the entry by which he reached the face at
the beginning of his shift. Under MSHA's interpretation of
the plan Rushton can continue to use the portabus at the inby
end of the track as a storage area in three of the sections
but in two of the sections including the S-3 2nd south mains,
Section No. 3, the section at which the citation was issued, the
storage area would have to be in a different place. The
operator contends that this would cause confusion among
the miners in an emergency and that removing the self-rescue
self-contained device from the portabus and transporting
them to the newly designated storage areas increase the
chance of damaging and rendering useless these self-contained
self-rescue devices. There is a red button on the device,
which if hit will open it and start the gas flowing. At the
end of an hour it would be useless.
-Tlie self-contained self-rescue devices involved herein,
unlike the ordinary self-rescue device, is not small. It
is bigger than a football and weighs about eight pounds.
The coal seam is 39" high and in order to comply with the
citation the miner would have to take his device off of
the portabus and either have it transported by a tractor
or carry or drag it several hundred feet.
The only factual
dispute that arose during the trial, was that the superintendent
said that the inspector required that the storage location
be in the second break outby the face, whereas the inspector
himself said that it could be anywhere in entry No. 4 within

2700

a thousand feet from the face.
In any event, transportation
of the self-rescuing devices would be required twice on
every shift. !_/.
Mine Superintendent Roeder, who has a B.S. in mining,
testified that damage to the self-contained self-rescue
device was more likely if it had to be removed from the
portabus arid transported for a certain distance in 39" coal.
He testified that he would expect the men in an emergency
to come out the track entry since they knew it so well
and the track escapeway was clearly marked. Also, there
is a telephone in that entry. Mine safety inspector Crane
said the inspector made him put the storage area in the
No. 4 entry near the face and that miners sometimes at
quitting time forgot to go into that entry to pick them
up but headed straight for the portabus.
Mr. Hollen was a roof bolter operator. He was
chairman of the United Mine Workers of America mine safety
and health committee and had been so for four years. He
had 21 years experience in mines and approved the operator's
original storage area in the portabus for the self-contained
self-rescue devices. The new location required for
termination of the Order No. 2255375 caused confusion, he
said.
In handling the device, if you bumped the red spot,
the device would come open and would be no good thereafter.
He also said that in the face area there was no safe place
to store them where a scoop or tractor might not run over
them. He also said that as an escapeway, he would prefer
the track entry. Another member of the United Mine Workers
of America was Mr. Davidson, a belt examiner. He had 14
years experience in mining and was vice-president of the
local union and chairman of the mine committee. He did
not agree with the MSHA order and thought that the less you
moved the self-contained self-rescue device the better.
Mr. Baker, another union member, was a motorman with 12
years experience in the mines. He preferred the former
storage area in the portabus. He said that miners were
concerned and confused by the storage area required by MSHA.
They want to do down to the dinner hole, which is in the
track entry, and escapeway but are afraid that in an
emergency they will forget to go to No. 4 entry to pick up
their self-contained self-rescue devices. Mr. Jury, a
roof-bolter helper, has 12 years experience in the mines.
He is a member of the mine safety and health committee,
and he does not agree with MSHA's directions in this case.
1/ The self-contained self-rescue device costs about $500
and if the operator had been willing to supply two selfcontained self-rescue devices for every miner, one device
could remain on the portabus, and one could remain in the.
storage area so as to avoid transportation twice on each
shift. MSHA has not suggested that the operator should be
required to buy two such devices for each miner.

2701

He said the action taken to terminate the order caused
too much handling of the devices and confusion as to their
location. He saw no benefit in keeping the devices closer
to the face.
Near the close of the hearing, the inspector
was recalled to the stand and disagreed with the concerns
expressed by the various miners and other witnesses for
the company.
Section 75.1704 of Title 30 of the Code of Federal
Regulations requires that a mine contain at least two separate
escapeways one of which must be on intake air. Section
75.1707 of Title 30 CFR requires that in any working section
opened after March 30, 1970, the escapeway that is required
to be on intake air shall be separated from the belt and
trolley haulage entries. As I interpret these sections,
if one of the two required escapeways was on return air,
then the escapeway on intake air could not be either a
haulage track or belt haulage entry. From this., MSHA
apparently, and it was not too clear at the trial, concludes
that the escapeway which is not on a track entry or a belt
entry, but is on intake air, is the "main" escapeway.
There is no doubt that the MSHA off ice intended that the
term "designated intake escapeway" in the July 6, 1982
letter mean an intake escapeway other than a track entry
or a belt entry. But nevertheless item No. 2 in the
July 6, 198s letter, states, and I will repeat "the
storage area for sections shall be in the designated intake
escapeway or in intake adjacent to and connected to the
designated intake escapeway". In this case both designated
escapeways were on intake air, and I hold that the storage
area could have been in either designated intake escapeway
or in intake air adjacent to and connected to a designated
intake escapeway.
As to the safety of the storage area required by MSHA,
it is also a matter of opinion. Four experienced miners
and two experienced supervisors testified as to the
preference, from a safety standpoint, for having the devices
in the portabus at the end of the track in the track entry.
All stated that they thought that any handling of the devices
increased the chance of their being rendered inoperative.
Inspector Klemick thought their fears were unfounded and he
is also an experienced inspector. The miners carried normal
(not self-contained} self-rescue devices at all times and these
would protect them for up to one hour and would certainly
last for the ten to fifteen minutes it would take to get to
the portabus where the self-contained self-rescue devices
were stored.
There is no way of knowing who has the correct
opinion, but when six experienced miners testified that a.certain
way aaf. doing some.thing is hazardous and another way of doing

2702

it is safe, I have to go along with them and hold that the
storing of self-contained self-rescue devices in the portabus
in the track entry is safer than storing them in a different
entry in two of the five sections.
The ORDER is VACATED and the case is DISMISSED.

'?:J.

~e CJn~ti,
Charles c. Moore, Jr.
Administrative Law Judge
Distribution:
Joseph T. Kosek, Esq., Rushton Mining Company, P.O.B. 367,
Ebensburg, PA l5931 (Certified Mail)
Robert A. Cohen, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Mr. Lemuel Hollen, Chairman-UMWA Safety Committee, Local 1520,
c/o Rushton Mining Company, P.O.B. 589, Philipsburg, PA l6866
(Certified Mail)

2/
I reject the company's argument that an order can
not be modified after termination.
I respectfully disagree
with Judge Sweeney's opinion to the contrary.

/db

2703